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MANUAL 



POLITICAL ETHICS 



DESIGNED CHIEFLY 



FOR THE USE OF COLLEGES AND STUDENTS AT LAW. 



Lex, communis reipublica sponsio. 

SENECA. 



PART I. 



BOOK I. ETHICS GENERAL AND POLITICAL. 
BOOK II. THE STATE. 



By FRANCIS LIEBER. 



BOSTON, 

CHARLES C. LITTLE AND JAMES BROWN. 

MDCCCXXXV1II. 

2^ 



.V 



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Entered according to Act of Congress, in the year 1838, by Francis Libber, in the Clerk's 
Office of the District Court of Massachusetts. 



BOSTON: 
PRINTED BY FREEMAN AND BOLLES, 
WASHINGTON STREET. 




TO 



JOSEPH STORY 



AND 



HENRY HALLAM. 



PREFACE. 



The work itself will show the precise branch to 
which I have assigned the name of political ethics ; 
it remains for me only to give here the assurance 
that the second part, containing a discussion of those 
many relations in which a citizen finds himself called 
upon to act, and for which, however important, the 
positive law does not, or cannot furnish a sufficient 
rule of action, will be offered to the public at the 
beginning of the next year, if I remain in health. 

The present volume forms, as may be conjectured 
from the title, a separate whole of itself, and has for that 
reason been called part first, and not volume first. 

In carrying the work through the press, I have de- 
rived great advantage from the valuable advice and 



VI PREFACE. 

indefatigable kindness of my friend, Mr. George S. 
Hillard, of Boston. He has done to me, and I fondly 
hope, through me, to the public, a service which literary 
men will know how to appreciate, especially those who 
write in an idiom which they have not learned from 
their mother's lips. 

Columbia, S. C. 

August, 1838. 



CONTENTS 



BOOK I. 

ETHICS IN GENERAL ; POLITICAL ETHICS IN PARTICULAR. 
CHAPTER I. 

PAGE 

Science. — Name and Subject of Ethics. — Sympathy or 
Fellow-feeling. — The Human Intellect. Thinking, Re- 
flection. — Difference of Mental Action in Animals and 
Man. — Experience of Animals. — Animals do not exchange 
Labor or Produce. — Instinct. — Combinatory Action of the 
Animal Mind. 1 

CHAPTER II. 

Sensuality and Rationality. — Man . can determine his own 
Action — is free. — Animal Affection. — Right and Wrong ; 
Ought and Ought not. — Conscience. What it is. Its 
Origin. — Locke's Opinion discussed. — Universality of Con- 
science. — Uniformity of Moral Codes and Views. — The 
Thugs and Battas. — Can we explain Man's Moral Charac- 
ter by Sympathy alone ? 19 

CHAPTER III. 

Ethical Character of Man. — How does Conscience act? — Is 
it alone an Oracle or perfect Index? — Practical Moral Law. 



Vlll CONTENTS. 

PAGE 

— Man's Individuality. — Morality founded upon it. — Our 
Ethic Character is inalienable, hence our Responsibility 
likewise. — Ethic Experience and Skill. — Various Ethic 
Systems. 54 

CHAPTER IV. 

Man, a Being having his own End and Purpose, or an Ens 
autoteles. — Natural Law. — Its only Axiom. — Its Object. — 
Difference of Natural Law and Ethics. — Science of Poli- 
tics. — Disastrous Consequences of Confounding Natural 
Law and Politics proper. — Good Faith necessary wherever 
Man acts. — Political Ethics. — Its relation to the other Sci- 
ences which treat of Man 63 

CHAPTER V. 

Do Political Ethics deserve to be treated separately ? — Can 
Ethics be applied to Politics? — The People at large ought 
to know their Political Duties. — Political Ethics are not for 
the Statesman alone. — Demoralising Effect of a politically 
debased Society upon the Individual. — Political Ethics 
especially important in Free Countries. — Attempts of Gov- 
ernments and Nations to justify Public Crimes, which 
proves that Men agree, public Acts ought to be founded on 
Ethic Grounds. — Ethics cannot be applied to Politics pre- 
cisely as to private Relations. — Mere Expediency ; mere 
Theory. 74 

CHAPTER VI. 

Does Religion or Common Sense dispense with Ethics in 
Politics? — Hume's View of Common Sense. — What is 
Common Sense ? — It does not dispense either with a proper 
Knowledge of Politics and Ethics, or constant Exertion 
and much Industry. 91 



BOOK II. 

THE STATE. 
CHAPTER I. 

PAGE 

The Law is everywhere. — What is Law? — Sociality. — Origin 
of the Family. — Of Society. — Everything conspires to lead 
Men to Society. — Strong and natural Ties in Family Affec- 
tion, Language, Division and Union of Labor. . . . 103 

CHAPTER II. 

Property. — Mine and Thine. — Origin of Property. — Various 
Titles. — Individual Property is necessary for Man. — Does 
not arise from Man's Iniquity. — Man never lives or can live 
without Property. — Slow Development of Property. — Inter- 
national Acknowledgment. — Copy-right. — Property with 
Agriculturists. — Civilisation and Population depend upon it. 115 

CHAPTER III. 

Civilisation. — What does it consist of? — Requires Society. — 
It developes Man, is his truly Natural State. — Futile Dreams 
of Innocence and Virtue without Civilisation. — Shepherds 
are savage. — Destiny of Woman. — High Importance and 
sacred Character of the Family. — Virtues developed by it. — 
The true Nursery of Patriotism 139 

CHAPTER IV. 

What is the State? — By what Characteristics does it differ 
from the Family ? — The State a Society. — Various Human 
Societies, according to the various Relations. — Relations 
of Consanguinity, Exchange, Comity, Intellectual Commu- 
nion, of Right. — What is Right ?— The State is the Soci- 
ety of Right. — The Just is its Fundamental Idea. — Objects 
of the State. — What is Protection? — The State requires 
General Rules ; its Members are not absorbed by it ; every 

VOL. I. B 



X CONTENTS. 

PAGE 

one has Claims upon it; it is a Moral Society; it exists of 
Necessity. — The State remains a Means. — The Individual jS 
above the State ; the State above the Individual. — The 
State, as such, has Rights and Obligations ; the State does 
not make Rights, but acknowledges them. — Civilised States 
far the most powerful. — Man by Nature a Political Being. 
— Man never exists without the State. — The State is no 
Insurance Company. — Protection of Life and Property not 
the only Objects, nor the highest. ..... 161 

CHAPTER V. 

Legitimate Objects of the State. — Danger of Intermeddling 
Legislation ; Instances. — Primordial Rights and Claims. — 
Physical Life and Health. — Law of Necessity. — Personal 
Liberty. — Right of Individuality ; no Absolute Obedience 
possible. — Right of Share in the Protection of the State. — 
Jural Reciprocity. — Right to be judged by Laws, and Laws 
only. — Right of Communion or Utterance. — Liberty of the 
Press. — Right of Morality. — Immoral Laws, no Laws. — 
Right of Honor, Reputation. — Family. — Religion, Creed, 
Worship. — Right of Property, Acquisition, Exchange. — 
Right of Emigration. — Inalienable Rights. — State cannot 
take Revenge ; the Crown cannot feel Wrath. — Political 
Absurdity of Speaking of King's Anger or Nation's Re- 
venge as Political Body. 195 

CHAPTER VI. 

The State necessarily comprises all. No one can declare 
himself out of it ; no one can be considered out of it, — 
Different Meanings attached to the Word State at different 
Periods. — Mankind divided into many States. — Why? — 
Sovereignty. Definition. — There were never individual 
Sovereigns before the Formation of the State. — Who is the 
Sovereign ? — Manifestations of Sovereignty. Public Opin- 
ion, Generation of Law, Power. — Public Opinion. — Law. 
What does it consist of? — Public Will. — Nature, Common 



/ 



CONTENTS. XI 

PAGE 

Sense, Custom and Usage, Common Law, Charters, Codes 
and Statute Law, Decisions, Precedents, Interpretation, 
Authentic Interpretation, Digests. — Judge-made Law, so 
called. — Power rests with Society, cannot rest anywhere ■- 
else. — Government, what it is. — Various Kinds of Govern- 
ments as to their Origin. Always rest on Opinion. Impor- 
tance of distinguishing State, Government, Sovereignty, 
Supreme Power. — Divine Right. — Monarchs called of God. 
— Frederic's and Joseph's View. — No Monarch ever was 
or can be Sovereign in the true Sense. — Meaning of the 
Word Sovereign if used of the British Monarch. — Declara- 
tion of Rights. — True Relation of Monarch and People. — 
Can the King really do no Wrong, constitutionally or 
legally ? He can do so, and it has been decided that he 
can. — British Monarch the Fountain of Honor. — Its Mean- 
ing. — Different Title of Monarchs ; some of the Land, some 
of the People 240 

CHAPTER JVII. 

Public Power. — Why necessary ? — Why must it be restrain- 
ed? — Abuse of Power general. — Man justly loves to act, to 
produce, to effect something. — It is the inherent character 
of all Power to increase, if unchecked. — Power delights, 
and is not willingly given up.— Power in all Men and all 
Spheres is irritated at Opposition. — Man judges according 
to his Position, those in Power differently from those out of 
it. — Power is in its Character imposing. .... 305 

CHAPTER VIII. 

Legitimacy of Governments. — Governments de jure, de facto. 
— Divine Right. — Legitimacy of Governments with Refer- 
ence to International Intercourse. — Can the Legitimacy of 
Government be ascertained by its Origin? — Filmer, Locke, 
Rousseau, Haller. — The Origin of all States essentially the 
same ; yet Infinity of Circumstances, which influence and 
modify its Development. — Ancient View on the Origin of 



XU CONTENTS. 

PAGE 

Governments. Aristotle, Polybius. — Various Theories. — 
Social Contract. — Various Pacta. — Hobbes, his Error. — 
Theocratic Theory 319 

CHAPTER IX. 

View of the Origin and Character of the State in the Middle 
Ages. — Dante. — Thomas More. — Bodinus. — The Nether- 
lands first proclaim broadly that Monarchs are for the Ben- 
efit of the People, and may be deposed. — The Development 
of the Idea of the Sovereignty of the People owing to the 
Jesuits. — William Allen. Persons. Ballarmin. — Jesuits 
defend Regicide under certain Circumstances. — Mariana. 
Suarez. — Luther. Calvin. — Bacon. — English Revolution, 
a great Period for liberal Ideas in Politics. — Puffendorf. — 
Leibnitz. — Montesquieu. — Hume. — Quesnay. — Turgot and 
Malherbes. — Mably. — Adam Smith. Blackstone. Delolme. 
Bentham. Hallam.— Revolution of 1830 344 

CHAPTER X. 

Various Standards of Great Political Periods. — The Govern- 
ment must depend upon given Circumstances and Materials. 
— Which is the best Government? — Errors as to an Ideal 
Government. — Governments cannot be made in the Closet, 
or decreed. — Characteristics of a good Government. — Civil 
Liberty. What it is. Errors respecting it. — Majority and 
Minority. — The Majority are not the People. — The Athen- —*- 
ians checked their own Power. — Great and true Value of 
Representative Government. — Whoever has the Power, 
One, Many, or the Majority, abuse it, and must be 
checked. 360 

CHAPTER XI. 

Political Atony one of the greatest Evils. — The Ancient Ty- 
rannies. — Variety of Means to check the Abuse of Power. 
— Can Power be controlled ? — Who controls the controlling 
Power ? — Constitutions. — Are Written Constitutions of any 



CONTENTS. Xlll 

PAGE 

Value ?■ — Constitutions are Indispensable.— Various Rea- 
sons why and Circumstances when Written Constitutions 
are desirable or necessary. — Division of Power ; Legislative, 
Executive and Judiciary. — Great Danger resulting from 
Confusion of these Branches, in Republics as much as in 
Monarchies. — Importance of the Separation of the Execu- 
tive from the Legislature. — Vast Importance of an Inde- 
pendent Judiciary. — What does Independent Judiciary 
mean ? — The farther Political Civilisation advances, the 
more independent does the Judiciary become. . . . 389 

CHAPTER XII. 

Classification of Greek Constitutions by Aristotle. — Classifica- 
tion of Governments, according to the Number of those 
who hold the Supreme Power. — Polity. Meaning in which 
it is used in the Present Work. — Autarchic and Hamacratic 
Polities. Autarchy, Hamarchy. — Absolutism. Democratic 
Absolutism. — Different Operation in the Autarchy and Ha- 
marchy. — Hamarchy materially republican in its Character. 
— The Polity of England is a Hamarchy. — The Polity of 
the United States likewise. — Hamacratic Character of the 
City of Rome. — Hamarchy rises with the Teutonic Race. 
— Anglican Hamarchy . 409 

CHAPTER XIII. 

Political Spirit of the Ancients. — The Ancients had not what 
we call Law of Nature. — Essential difference between the 
View of the State taken by the Ancients and the Moderns. 
— Greek Meaning of Liberty. — Absolute Equality,, even 
disavowing the Inequality of Talent and Virtue. — Protec- 
tion of the Individual, first object of the Moderns ; the Ex- 
istence of the State, of the Ancients. Hence high Impor- 
tance of Judicial Forms with the Moderns. — He who has 
Supreme Power, be it One, Many, or All, must not sit in 
Judgment. — Greek Laws often very oppressive to the Indi- 
vidual. — The most private Affairs frequently interfered with. 



XIV CONTENTS. 

PAGE 

Socrates's View of the State : Lavalette, Hugo Grotius, and 
lord John Russell, on the other hand. — Ostracism. — Causes 
of the powerful Change in the View of the State. — Christi- 
anity. — Conquest of Roman Empire by Teutonic Tribes. 
— Feudalism. — Increased Extent of States. — Printing. — 
Increased Wants of Government. — Taxation ; Rise of Third 
Estate. Increased Industry. — Discovery of America. .417 



POLITICAL ETHICS 



BOOK I. 

ETHICS IN GENERAL ; POLITICAL ETHICS IN PARTICULAR, 

CHAPTER I. 

Science. — Name and Subject of Ethics. — Sympathy and Fellow-feeling. 
— The Human Intellect. Thinking, Reflection. — Difference of Mental 
Action in Animals and Man. — Experience of Animals. — Animals do 
not exchange Labor or Produce. — Instinct. — Combinatory Action of 
the Animal Mind. 

I. A science is a branch of knowledge or collection 
of ideas systematically developed according to principles 
peculiar to the subject-matter itself (1). A science is 
independent within its own sphere. Everything is 
worthy of being scientifically investigated, that is, wor- 
thy of being investigated as to its essentials, separately 
and for itself, with the view of arriving at principles and 
laws. Every principle and law thus arrived at extends 
the sphere of knowledge, expands the human mind, in- 
creases the stock of civilisation, and is emphatically use- 
ful. We are uselessly employed when occupying our- 
selves with accidentals ; usefully, when with the essen- 
tials of things, i. e. with their nature, that which makes 
them what they are. This constitutes the difference 
between idle curiosity or a pedantic accumulation of 

VOL. I. 1 



2 Ethics in General. [book l 

facts, and scientific inquiry — that noble employment of 
man (2). Whether we are worthily occupied does not 
depend, in an abstract point of view, upon the subject 
we inquire into, but upon the mode and object of in- 
quiry; yet it may depend upon the subject relatively to 
other important considerations. Whether the subject 
be mind or matter ; the soul, thought, appetites, the 
organs or the size of man (3), the laws of nature or 
society, truth, error or fiction ; things as they are or the 
changes through which they have become such — every- 
thing may be scientifically investigated, is worthy of 
being so, and contributes essentially to our knowledge 
of the nature of things, their connexion, their order, and 
the Being that prescribed it. 

(1) Soon after the reformation universal history was divided into 
four kingdoms, according to Daniel viii. 22: "Four stood up for 
it, four kingdoms shall stand up out of the nation." This was un- 
scientific, because the four kingdoms of the prophet's vision have 
no connexion whatsoever with the principles derived from the 
subject-matter — history, itself. 

(2) A person in England has counted how often the word And 
occurs in the bible. Yet facts, ascertained by mere curiosity, may 
be used by others for higher purposes ; for instance, in this case, 
if a scholar were desirous of showing how late children or nations 
free themselves, in using prose, from a continual recurrence to 
the conjunction And. So may scientific minds make proper use 
of facts collected for very different purposes; for instance, when 
Hippocrates studied the votive tablets in the Grecian temples, con- 
taining a brief description of diseases and the remedies, believed 
to have effected the cure, for which the grateful reconvalescent 
dedicated the table to the deity, by whose assistance he supposed 
himself to have recovered ; and when that great man laid upon 
this study and his own observation, the foundation upon which the 
science of medicine mainly rests to this day. 

(3) As Mr. Quetelet, of Brussels, has published very interesting 
and important inquiries upon this subject. 



sec. ii.] Science. 3 

II. That science, which treats of what is good, noble 
and meet, wise and right, because it is good (1), as well 
as the opposite of these ; of the origin of our notions of 
the good, noble and meet, the peculiar nature of man, 
without which he could not have had these notions, and 
his consequent essential attributes, the duties flowing 
from these attributes, and the relations necessarily found- 
ed upon our knowledge of the good — that science is 
called ethics or morals. They constitute a science, 
which treats of our moral character ; of the good as an 
idea within us, and its application to our appetites and 
impulses, dispositions, actions and habits. The former — 
the good as an idea within us and man's moral nature — 
form the subject of the metaphysical, or strictly philo- 
sophical part of ethics ; the latter, their application to 
our natural dispositions and the various relations be- 
tween man and man, belong to the province of applied 
or practical ethics, called, likewise, by some, the science 
of duties and virtues (2). 

Taking a popular view of all sciences we may com- 
prehend them within two classes, namely : sciences 
which teach what is or has been, such as natural philos- 
ophy, natural history, statistics, geography, the philoso- 
phy of the mind, mathematics, civil history, &,c. ; or what 
ought to be — the subject of the moral sciences. This 
ought to be would have no meaning, wherever it applies 
to anything not wholly belonging to the physical world, 
were there not some actions which we cannot but con- 
sider as good, and others as evil, were man not a moral 
being, had he not a moral character, as soon and as 
long, as he is master of his actions. Man is responsi- 
ble for what he does. 

(1) Section XXIX., Chap. IV. of Book I. explains why I have 
said : "right because it is good." 



4 Ethics in General [book i. 

(2) Doctrina de Officiis ; e. g. Cicero, De Officiis. The Ger- 
mans have Pflichtenlehre (Doctrine of duties), and Tugendlehre 
(Doctrine of virtues). 

Etymology. Words which designate a cause, principle, some- 
thing general or abstract, have, in almost all cases, designated at 
an earlier period, some effect, something specific or real. The 
mind proceeds from the concrete to the abstract, and then returns 
from the abstract to the concrete. The effort strikes the mind at 
once; the cause is arrived at by reflection. We observe the same 
process respecting the signification of the word ethics and morals. 

Ethics is derived from the Greek word rjd-ixog, moral, from 
e&og custom and ^og the accustomed dwelling, home. Plato de 
Legg. 7 : nav ^d-og dice %&og. Aristotle derives it in various places, 
in his Ethics from e&og. The word ^#oc means first dwelling, 
home, secondly, that which is customary there, among men, who 
have homes, among civilised beings; thirdly, habit, and lastly, the 
expression of our affections. "E&og means always custom, usage, 
manners — that which has been settled among men as custom, that 
on which men agree that it is proper, propriety, to which the 
ideas of decorum, of what is right, what ought to be done, are 
closely related. At a later period man reflected on what was 
really general custom, what is essential in it and what merely 
accidental, and why it is and ought to be so, or whether it ought 
to be different. The word edog, the seat, chair, basis, also dwell- 
ing, especially of the gods, belongs likewise to this family of 
words, as the Latin solum soil, and solere are connected, the first 
signifying that which has settled, is firm, the latter indicating a 
settled disposition, a being in the habit of doing a thing. The 
idea of something settled, stable — resting, therefore, on some 
general principle, for settling does not mean here an arbitrary 
agreement upon some fashion, but a custom which has become 
settled, tacitly and gradually so — is then to be found in all words 
connected with that of ethics, as is the same case with the corres- 
ponding words in the Teutonic languages. "E&og in German is 
Sitte, a word closely related to the words Siz, in English seat 
(which signifies both in German and English also a dwelling- 
place, as : a country seat, the seat of a tribe), Gesez, the German 
for Law, that which has been settled, as the English law is con- 
nected with the verb to lay, that which has been laid down ; 
Sazung, an ordained, and well-established law. In Low German 



sec. in.] Sympathy, or Fellow-feeling. 5 

one of the meanings of the word setten is to ordain, and sate is 
ordinance, law. See a Dictionary of the Low Saxon Dialect, 
Bremen, 1770, under the words setten and sate. 

Sitte is an ancient Teutonic word. Sito, Sidde, Sid are used 
in earliest times ; in Anglo-Saxon Sida,Sitha; in Swedish Sed, 
in Icelandic Sidr. Sittlich in German means moral ; Sittenlehre 
the science of that which is sittlich, ethics ; gesittet denotes the 
behavior which is the effect of Sittlichlceit, i. e. morality. 

The word morals is derived from the Latin moralis, which was 
first introduced by Cicero, de Fin. c. 1. : Nos enim partem philo- 
sophise de moribus appellare solemus, sed decet augentem latinam 
linguam nominare moralem. Moralis, therefore, is derived from 
mores, very similar in its meaning to ^#o£, signifying, in its widest 
application, according to Quintilian : omnes habitus mentis. 
Seneca (Ep. 89) says that philosophy is divided by most people, 
into phil. moralis, naturalis and rationalis. 

III. Why is man responsible ? Why is he account- 
able for what he does ? — Because he has an essentially 
ethic character. What is this ; in what does it consist? 

It belongs to the province of ethics proper to furnish 
ns with satisfactory answers and proofs as to the ques- 
tions just made ; but a clear and distinct understanding 
of some points involved in these answers is so neces- 
sary for a correct solution of numerous questions to be 
discussed in the course of this work, that it will be 
necessary to pay some attention to them here. 

In the first place the physiologist shows the superiority 
of the human organisation, its various functions, and all 
that is connected with the animal life of man, over those 
of the rest of the animate creation. This subject forms 
one of the most interesting results of comparative anato- 
my and physiology. 

IV. Man is endowed with sympathy or fellow-feeling, 
L e. a feeling for the pains and pleasures of others, 



6 Ethics in General. [book u 

though unconnected with any interest of his own, or 
standing in no direct connexion with him, even by way 
of fear for his own future protection ; and with a pecu- 
liarly expansive feeling of attachment. The latter, an 
element of the greatest importance in everything at all 
connected with man's social state — and what is not ? — 
is reducible to the first, or, if it be preferred, is a species 
of sympathy peculiarly developed, so that I feel justified 
in comprehending it under this head. The existence of 
the family, love of country, public spirit, devotion to our 
family, fellow-citizens, or species, disinterestedness, love, 
charity, friendship, the fine arts, the existence of the 
state, and whatever is noblest and best in man, is, in 
part or -wholly founded upon this great element of the 
human soul. Fellow-feeling, being an elementary attri- 
bute of our soul, cannot be proved otherwise, than by 
our consciousness of it, and its effects being observable 
everywhere. Were a man to deny his being or ever 
having been conscious of any fellow-feeling, of ever 
having suffered except in consequence of injury done 
directly to himself, or having felt pleasure except as an 
effect of benefits done to himself; and were he farther to 
assert that he sees the effect of sympathy nowhere 
around him ; it would be impossible to demonstrate its 
existence to him, any more than the existence of the 
sense of sight to any one who would boldly deny our 
direct and absolute consciousness of its existence and 
the consequent perceptions of colors. 

The denial of this feeling as an essential and original 
attribute of the human soul, on the ground that we do 
not discover it with the lowest beings of the human race, 
is unfounded; for, first of all, we do actually find it with 
individuals to whatever tribe they may belong, or in 



sec. v.] Sympathy or Fellow-feeling. 7 

whatever degree of civilisation they may stand, though 
we may observe it only in its incipient stages, and it 
may, indeed, not manifest itself in many cases, in which 
individuals of the society we live in, would show it in 
a strong degree. We shall have to treat at some length 
of the capital error, into which numerous philosophers 
have fallen, to the perversion of truth, in supposing that 
that only is natural in man, which, according to their 
presumption, is to be found in a supposed primitive 
stage of human society. Suffice it here to say, that 
nothing can be more fallacious and subversive of all 
truth than the supposition that man's nature, be it intel- 
lectual, moral or physical, can be found out best, or only 
by observing him in what is supposed to be his state of 
nature, and a confusion of this supposed natural state 
with the state of savageness. 

V. Nor can sympathy be denied to constitute an 
essential attribute of the ethic character of man, on the 
ground that we may discover it in animals likewise. 
We observe, indeed, in animals a feeling which forms 
with ourselves one of the incipient stages of sympathy ; 
the anxiety of the parent for its offspring ; with some 
animals the protection afforded by the male to the fe- 
male, and with other species a decided disposition for 
living socially together. But how limited as to time and 
individuals is this feeling even with those species of the 
brute creation, which rank highest in the animal scale, 
and in how many cases can we distinctly refer it to an 
impulse of nature, to instinct, with which it stops short, 
or to a mere feeling of common danger. The wild hogs 
are known to be peculiarly sensitive to common danger. 
If one be attacked, it will attract the rest of the herd 



8 Ethics in General. [book i. 

by its violent cries, and all will resolutely attack the 
enemy. Yet this very animal is peculiarly prone to de- 
stroy its own offspring. The hen, which but a moment 
ago was the image of maternal solicitude, when the 
hawk was hovering over her brood, betrays no symp- 
tom of grief when she sees two or three of her chickens 
carelessly trampled to death by herself. The most 
striking instances of animal sympathy on record, are, 
perhaps, those where animals of different species had so 
accustomed themselves to each other that the removal 
or death of the one caused the other to pine away; as, 
for instance, in the case of the dog and lion in the Gar- 
den of Plants at Paris. The Chinese rice -bird, when 
in a cage, will die when its mate is removed. Yet 
how limited is this, the highest instance of animal 
desire for the company of another, compared to the ex- 
panded sympathy of man — sympathy which is founded, 
as we characterised it, on a feeling for another individual 
unconnected with our own interest. 

Some writers have acknowledged the existence of 
sympathy, indeed, but reduced it to self-interest, to 
egotism. It is the office of ethics to refute this doc- 
trine, which, were it established, would destroy the basis 
of nearly all that is good, noble, or worth living, laboring 
and striving for. It does not lie within the province of 
the present work to undertake this task ; we will decide 
it in a practical way, only by asking, are you a brother, 
or a son, or a friend ? Have you ever seen a venerable 
old man insulted by a wanton youth ? Have you never 
read the last farewell of Socrates ? Does it not make 
you feel elevated and yet pained, when you hear that 
Spinoza gave up his inheritance, small yet sufficient for 
his modest wants, rather than have a word of dispute 



sec. vi.] Human Intellect, 9 

with his sister, and that in consequence he had to work 
as glass-grinder in the day-time, that he might follow 
at night his profound studies. Did you feel nothing 
when you heard of the noble Poles who were torn from 
their families and sent to Siberia for having loved their 
country, and whose children were taken far into the 
interior of Russia ? Have you never perused a satis- 
factory vindication of a person against whom grave and 
plausible charges had been brought ? Have you ever 
heard of the delight which burst from the lips of the 
ancient mathematician, in the words " I found it," when 
he at length had solved the great problem, and felt the 
whole magnitude of his discovery for thousands of gen- 
erations yet unborn ? Has the perseverance of Colum- 
bus never reached your ears ? And have you heard of 
these things without feeling joy or pain ? Has no drama 
ever touched you ? On what, indeed, is nearly the 
whole literature of belles-lettres founded, if not on sym- 
pathy — sympathy even with fictitious beings ? Who 
peruses without emotion the agony of poor Jenny in 
Scott's Heart of Mid-lothian, when she is forced to tes- 
tify against her sister; the overwhelming joy when she 
has obtained the king's pardon for Effie ? How many 
millions after millions have been touched by the return 
of Ulysses to his servants, son and wife? How many 
thousands have felt sorrow at the sorrows of Juliet and 
Romeo ; joy at the joy of Robinson Crusoe, when 
he finds Friday? How can all this be accounted for 
by egotism? 

VI. Man is endowed with intellect, the faculty of 
reflection. 

Thinking begins with the perception of effects pro- 

VOL. I. 2 



10 Ethics in General [book i. 

duced on our external senses, as well as of certain 
changes produced within ourselves. The mind then 
proceeds to the reproduction within us of that, which 
we have perceived, or, in other words, of impressions. 
The faculties necessary for the important process by 
which we endeavor to know and understand the per- 
ceptions and the functions of the mind, performing this 
process, form, perhaps, that, which more strictly is called 
the human intellect. Man analyses total impressions, 
that is, impressions produced by an object considered 
as an entire and undivided whole, compares the simple 
qualities, thus discovered, with others obtained by the 
analysis of other total impressions, and reduces them to 
generic or general ideas (the process of generalisation). 
He combines these again and draws conclusions (he 
reasons). Man analyses, compares, combines, abstracts, 
concludes and judges ; he arrives at the ideas of truth 
and fallacy ; he separates, and arrives at the causes of 
effects ; he combines and elevates himself above the 
sensible world. It is thus alone, for instance, that he 
acknowledges himself as the citizen of a state. 

It has been maintained that, though there be a great 
difference between the capacities of man, and the 
thinking of animals, yet the difference is not in the kind 
but merely in the degree, and that the mental powers 
of the highest animal approach so closely to those of 
the lowest man, that in fact it may be said, there is no 
essential difference, but merely a gradual transition, 
and that therefore no conclusion, important in an ethic 
point of view, can be drawn from this difference. 

This objection may be answered thus : First, whether 
the existing state of mind of the lowest man approaches 
very closely to the intellect of the highest animal, or 



sec. vi.] Mental Action in Animals and Man. 1 1 

sinks even below its level, is not the important point to 
be discussed. The question is : Can the low intellect 
of man be raised and developed or not, and is the mind 
of the animal which approaches to that of the lowest 
man, in its highest manifestation 1 Every thing else is 
accidental, not essential. The eyes of a new-born 
eagle may be weaker, and, considered in their actual 
state, more defective organs of sight, than perhaps those 
of a mole. Yet the eyes of the eagle are far superior, 
and differ strongly in their organisation from those of a 
mole. 

Secondly, I believe we do not venture too far, in 
considering it as a settled truth, that the mental activity 
of the animal, which it undoubtedly possesses, does not 
elevate itself above some of the most elementary com- 
binations of impressions received through the senses — 
combinations which the mind of the brute performs 
without consciousness. We, ourselves, perform nume- 
rous combinatory processes, without consciousness of 
the performance, e. g. when we avoid a disagreeable 
disturbance, which we have repeatedly met with, on 
our usual walk, by taking a different direction, and 
become conscious of the cause only after we have been 
reminded of our change by the fact of having chosen 
already a different walk. The animal undoubtedly 
thinks, but man reflects. "A mule," says Frederic 
the Great in his Considerations on the Manner of Wag- 
ing War with Austria (1758), "though it might have 
made ten campaigns under Prince Eugene, would not 
become for all that a better tactician." Man reflects 
upon his reflection ; thinks on his thoughts ; makes the 
mind itself the subject of its inquiry. The animal can 
do no such thing. If it could, it would speak ; for 
though its organs of speech may not be so favorably 



12 Ethics in General. [book i. 

formed for the expression of a great variety of tones 
and accents, as the high-arched palate, the peculiar 
construction of the wind -pipe, the peculiarly movable 
lips and the many other organs of man which contribute 
to the variety, pliability and beauty of language ; yet 
there are many animals which possess a scale of tones, 
even now uncultivated as they are, sufficient to become 
the basis of articulate communication. It is not because 
the animals have no perfect organs of speech that they 
have no language, as Anaxagoras said, that animals 
would be men had they but hands ; but they have no 
language because they have not the ideas to be ex- 
pressed. I doubt not but that some of the most intel- 
ligent animals feel at times a degree of that unspeakable 
pain which man suffers when language forsakes him, 
and his soul is anxious to express more than words can 
convey. I believe that I have observed this painful 
effect of a struggle between the mind and means of 
utterance, in a dog which was anxious to communicate 
a serious accident, and yet did not succeed in doing so 
for a long time. But this proves nothing against the 
position just taken. We observe the same pain in 
children. Did this pain always press upon the mind of 
the dog, the means of utterance would finally be raised 
to the wants of the mind, of whatever compound of 
sounds and signs this utterance would consist. It is 
the want of thought which makes the brute the " mute 
creation." William Humboldt says : " The intention 
and the capacity of expressing something, and not only 
a general one, but the distinct one of representing 
something thought, is the only thing wh'ch characterises 
the articulate sound, and nothing else can be fixed upon 
to designate its difference from the animal cry on the 
one hand, or the musical tone on the other." (1). 



sec. vii.] Experience in Animals, 13 

I am aware that there existed formerly a ready 
way of accounting for many intellectual phenomena in 
the brute world, by ascribing them simply to instinct. 
This is not accounting for the phenomenon. First the 
superiority of man was said to exist in his acting by 
reason, while the animal acts by instinct ; and when 
phenomena were cited, which showed undeniable traces 
of combinatory powers, and which would have contra- 
dicted this dictum, it was said, these phenomena must 
be explained by instinct, because animals have nothing 
else to guide them. With this argument in a circle 
many seemed to be satisfied. It can, however, unde- 
niably be proved, that in some cases, animals act not 
because impelled by instinct, but in consequence of 
mental action within them, though it may be, and most 
probably is, unconscious to them. Ask any hunter 
whether some pointers think or not. 

(1) On the Kawi-Language on the Island of Java, &c. vol. I, 
(in German) Berlin 1836, page 83 of the Introd. on the Diversity 
of the Organisation of Human Languages. The whole in the 
Transactions of the Royal Academy of Sciences at Berlin for the 
year 1832, vol. II. 

VII. Yet though this mental action in the brute 
animal is allowed — and some instances shall be given 
directly — there is still a line which very distinctly marks, 
even in a popular point of view, the difference between 
man and brute. 

1. Man gathers experience and transmits it from 
generation to generation, conscious of its being expe- 
rience, and thus capable of receiving new additions. 
The animal improves likewise by experience ; we find 
around us daily proofs of this fact. All drilling, which 



14 Ethics in General [book i. 

does not produce a new habit, is founded upon it. 
Animals entirely change their habits in different coun- 
tries, and acquire gradually a facility in protecting them- 
selves against the inclemency of weather or in procuring 
food. Young animals learn from the old ones, and 
what thus appears to many, at first glance, to be 
instinct, i. e. a primitive and direct impulse of nature, 
will be found, on closer examination, to be the effect of 
experience. The most timid animals, in parts of the 
world, which had never been visited by intruders, 
showed no fear at their first approach. The birds or 
seals, on the solitary islets in the Pacific, show no 
apprehension of any danger, no shyness w T hen first 
attacked ; but they acquire it as soon as they know 
the character of their pursuers. Whether the beaver 
builds his curious hut because it cannot resist an 
impulse entirely independent upon its volition, as the 
bee, for instance, forms its regular cell, or whether this 
species has formed its architecture by a stock of com- 
mon experience gradually acquired, might be tested 
by observation; but this seems certain, that know- 
ledge — and experience is a species of knowledge — is 
transmitted with animals by mere imitation, and re- 
mains within a very limited circle, even with the most 
favored animals ; while man improves it infinitely. The 
beavers of North America build to-day, as they were 
found the day when the first white men settled on the 
Western continent. There is likewise a greater uni- 
formity in the actions of animals in different parts of the 
world ; the natural impulses, though acted upon by 
experience, seem therefore to be more prominent. 

2. There is foresight in animals, and yet their fore- 
sight differs from that of man, even of the lowest grade, 



sec. vii.] Exchange peculiar to Man. 15 

by a marked characteristic. The beaver builds very 
cunningly his dams at a great distance from his lodge, 
following entirely the necessity arising out of the shape 
and current of the river. Animals collect stores for the 
winter, build bridges, prepare for battles, concert upon 
plans to decoy, entrap, or otherwise to catch their prey, 
endeavor to mislead the disturber of their young ones, 
or the enemy of their females, wait for favorable winds, 
observe a fixed order in travelling, relieve each other 
in the performance of laborious tasks, change their 
nests according to a change of circumstances, observe 
in some cases a certain degree of division of labor (as 
is the case with the beavers), the fox resorts to a series 
of actions having distinct reference to one another, in 
order finally to arrive at his object,— -and whatever else 
animals may do as indicating foresight or a faculty to 
combine received impressions. But there exists, as far 
as I know, no solitary instance of exchange among ani- 
mals, or of any thing that could be fairly considered 
as approaching it. The animal elevates itself in no case 
to any exchange of labor or produce, of which a certain 
degree exists among all men, the very lowest Hottentot 
or the most barbarous South-Sea-Islander not excepted. 
There is no human tribe known, which has not risen 
to this incipient stage of all civilisation, however impeded 
its farther progress may be by constant disturbances, 
such as incessant warfare, the permanence of savage 
habits, famine or disease. Even the most brutish Pe- 
lew-Islander will willingly part with the fish, which he 
has caught, for a piece of iron. So common an act of 
man is the exchange of articles and of labor, engrossing 
so much of his attention, and so large a number of all 
human actions in common life consist in exchanging, 



16 Ethics in General. [book i. 

that in German the word acting means carrying on 
trade, and action a commercial house. Yet the ety- 
mology of the German word indicates nothing of the 
kind ; for handeln (etymologically the same with the 
English to handle) is derived from Hand, and means, still, 
acting, because our visible actions are chiefly performed 
with the hands. 

VIII. It is not necessary for the present purpose to 
ascertain when the animal acts, simply impelled by 
instinct or not. If it be shown that in many cases the 
brute thinks, it suffices for our purpose, which, in this 
particular case, is to prove on the one hand that it is 
an erroneous notion, and, I believe, one unworthy of 
the Creator, to imagine that the whole brute creation 
moves and acts no ways different from the dissolved 
chemical elements of some body, when they crystallise ; 
on the other hand, that it is equally erroneous to deny 
any essential difference in the thinking of the animal 
and that of man. If a bird builds its nest for the first 
time, we cannot suppose that it has retained during the 
whole time it was living singly, a recollection of its 
parental nest, or that any idea of the fact that at the 
proper season, it will have young ones, in its turn, and 
that it ought, consequently, to provide for them before 
hand, has been imparted to it by any other individual 
of its species. This would necessarily indicate opera- 
tions of the mind, which we entirely miss where we 
should certainly expect them soonest. But if, on the 
other hand, a rising freshet threatens to reach the nest 
of a graniverous bird, built in a hedge, and the bird 
hastily builds a temporary nest in a safer place, and 
carries, against its natural disposition, and contrary to 



sec. vin.] Exchange, peculiar to Man, 17 

the common use for which the beak is formed, care- 
fully its young from the endangered spot to the new 
nest, we cannot possibly explain it by instinct, if this 
word is meant to express any definite idea. When 
the land-crabs of the West Indies sally forth, at the 
proper season, in long procession from the interior 
mountains and proceed in as straight a line as pos- 
sible to the seashore,' to deposit their eggs and shed 
their shell, and then return in the same order, we 
can hardly bring ourselves to consider these move- 
ments in so low an animal to be the effect of ex- 
perience and thinking. Take, on the other hand, a 
Newfoundland dog, which, as is common with dogs, 
took great pleasure in walking with its master. He 
soon found out that the act of taking hat and gloves, or 
of merely putting aside books and papers, at certain times 
of the day, were indications of the master's intention of 
going out, and he expressed his anticipation of pleasure 
by manifest signs. Several times, however, the dog 
had been sent home, as his company could not always 
be convenient to the master. The consequence was 
that the dog would take good care not to show that he 
expected to leave the house, but he would slyly steal 
out of the room, as soon as he thought that any indica- 
tions of a walk had been given, and wait at a certain cor- 
ner, which the master had to pass daily, and which was 
at a considerable distance from home. Surely this indi- 
cates some operation of the mind, not to be accounted 
for by instinct. 

The above instance has not been mentioned, because peculiarly re- 
markable, but simply because it fell under my own observation. I 
can give another more striking instance of mental operation in this 
VOL. I. 3 



18 Ethics in General [book i. 

intelligent animal. He accompanied a servant, who rode to a place 
at some distance from home. The horse was tied to a tree in front 
of a house, while the servant executed his message. When, after 
some delay, he came out of the house, the horse was gone; he 
went on a hill, and from this elevated spot he observed the dog 
leading the horse by the bridle, which the canine leader held in 
his mouth, both trotting at a moderate pace. The dog brought 
home the horse and led it to its proper place in the stable. So he 
was in the habit of leading one of the horses to be watered. This 
animal was sent from the coast of Labrador, and was not of the 
common long-haired breed of Newfoundland dogs. 

Several interesting works have been written on the instinct, 
habits, and extent of thinking in animals. Some great physiolo- 
gists, such as Haller, have collected most remarkable facts. There 
are some interesting anecdotes connected with this subject, to be 
found in various volumes of the London Library of Entertaining 
Knowledge. 

The reader who has any curiosity to know the old writers on 
the question whether animals have souls or not — a subject much 
discussed at one time, on religious grounds — may refer to the article 
Korarius, in Bayle's Dictionary. 



(19) 



CHAPTER II. 

Sensuality and Rationality. — Man can determine his own Action — is 
free. — Animal Affection. — Right and Wrong; Ought and Ought not. 
— Conscience. What it is. Its Origin. — Locke's Opinion discussed. — 
Universality of Conscience. — Uniformity of Moral Codes and Views. — 
The Thugs and Battas. — Can we explain Man's Moral Character 
by Sympathy alone ? 

IX. The infinitely superior intellect of man leads to 
another more important difference between him and the 
brute creation. The animal is, with rare exceptions, 
strictly confined within its own sensuality, that is, within 
the sphere of its senses alone. They direct its actions, 
or afford those impressions on which its limited sphere 
of thinking depends. Its affections are founded on its 
sensual impressions and impulses; the brute lives and 
moves within the sensible world alone. I said "with 
rare exceptions." If a dog, as lately happened, rushes 
into a house, wrapt in flames, to save an infant, far too 
young to have ever bestowed any act of kindness upon 
the animal, and if the animal, nevertheless, saves no arti- 
cle to which it had been accustomed for years, it cannot 
be denied that this is, in its kind, affection, to which the 
sensuality of the animal alone cannot have prompted, or 
the mere sensual nature impelled it. These exceptions 
have nothing startling for us. Who will say that he has 
seen the whole order of things in its details ; who can 
aver, he knows for what the great ruler has destined his 
brute creation ? 



20 Ethics in General . [book i. 

X. Man, belonging likewise in part to the sensible 
world, and being subject to the necessity of matter, ac- 
cording to his sensuality, i. e. to his belonging to the 
sensible world and its laws in which everything is deter- 
mined, and does not determine itself, has, on the other 
hand, the great and grave privilege to determine him- 
self. He can guide, determine himself by reason, within 
certain limits given by the material world ; he can choose. 
According to his sensuality, man is bound ; if he feels 
pain, he cannot help being prevented by it from freely 
thinking ; according to his rationality he is free, he re- 
flects and chooses — he enjoys freedom. His will is free, 
because he can determine himself, with regard to willing 
an object of which he is conscious. The proof of this 
is our consciousness of being able to will something 
which is repugnant to our sensuality; or which may 
cost us the greatest sacrifices of our warmest affections. 
The dog could be driven by its affection to act against 
its senses and common instincts ; but it cannot elevate 
itself by reason above even this affection (1). 

(1) It is one of the greatest, and most difficult problems of phi- 
losophy to show how the free agency of man or self-determination 
is compatible with the necessary order of things, the omniscience 
of the deity and the dependence of man on society, or, which is 
the same, how man's ethical individuality exists along with his 
close and intimate connexion, both with the* matter around him 
and the general course of the development of human mind, his 
close dependence upon the times he happens to live in. Though 
far from being solved, whatever some recent philosophers may 
have advanced, deceiving themselves by an amplification of words 
rather than an explanation of the subject, we know enough, and it 
can be sufficiently proved, even were not the consciousness of our 
ethic character so primary an element of the human soul, that both 
do exist, and that therefore the solution of the difficulty must be 
possible, whether in this world is another question. Mr. Quetelet, 



sec. xi.] Right and Wrong. 21 

a writer of uncommon merit, has given most interesting statis- 
tical details on the physical laws which influence the intellect and 
moral character of man, in one of his recent works, entitled On 
]JJan and the Development of his Faculties, or Essay on Social 
Physics, Paris. 1835, 2 vols, in French — a work deserving atten- 
tion. 

XI. If man acts he may be impelled by instinct, or 
prompted by his sensuality, e. g. when he drinks, being 
thirsty, or struggles to save himself from drowning, in 
which case he acts in common with the animal. Or he 
may determine his own will. In the latter case, he may 
be actuated either by motives of expediency, when he 
simply judges whether his action will lead to the object 
he has in view, e. g. when he grinds the sickle to reap 
his wheat ; or by moral motives (which in this case 
includes the immoral ones, as illness is included in the 
state of health). The moral motives make an action 
good or bad, praiseworthy or hateful, deserving of ap- 
plause or condemnation. 

Whence arises this new element in the human soul? — 
this principle according to which we call actions good 
or bad, and which we are unable to apply to matter, 
or to the animal mind, but to the human actions alone ? 

XII. It is evident, that had we not the sense of sight, 
it would be absolutely impossible for us to arrive at the 
notion of color by the operation even of the keenest 
intellect, or the most comprehensive genius upon per- 
ceptions received through the other senses. Yet we 
are conscious of the perception of color, and could not 
possibly alienate it from our mind, even were we to 
attempt it, for the very reason that we are conscious of 
it, in precisely the same degree as we are conscious 



22 Ethics in General [book i. 

of our existence. No man can prove either. If a per- 
son were to ask us to prove our consciousness of the 
notion of color, we could not do so ; the question relates 
to a primordial consciousness of the mind itself, but wte 
would answer perhaps thus : " All we can say is, we 
know, we are conscious of the fact that we exist, that 
we see, that we have the notions of different colors. 
If you deny it, there is no remedy ; but whatever you 
may pretend, the truth is, that yourself cannot help ac- 
knowledging them to exist in every one whom you see 
endowed, like yourself, with the organs of sight. Your 
own consciousness of the perception of colors forces 
you — not by a long course of reasoning — to acknowledge 
it in others, as soon as you see them endowed with 
active organs of sight. And what is far more import- 
ant, you do not only allow the consciousness of color to 
exist in others, but you demand it, you insist upon it, 
you presuppose it in every fellow-creature, and found 
your conversation, arguments, social and political inter- 
course upon it. You would go as far as to punish the 
pretence of its non-existence, e. g. if an officer were to 
pretend that he perceived somehow or other a flag be- 
ing hoisted on the admiral's vessel, but he knew no- 
thing about the colors exhibited by the flag; or you would 
be dissatisfied with a servant were he to gather fruits, 
which evidently show by their color that they are not ripe. 
You acknowledge and demand the consciousness of color 
in others, because you are conscious that you possess it 
q\m Jwmo, i. e. you do not only feel, believe, but you have 
the undoubted, primitive and absolute certainty of it ; 
you know that this consciousness constitutes an essential 
attribute of your being, and that it is not accidental. 
Greater certainty than this absolute consciousness we 



sec. xin.] Right and Wrong. 23 

cannot possibly obtain. We might show the great pro- 
bability that all men qua homines, if provided with sound 
eyes, have the consciousness of color, because we find 
traces of this sense among all men, and conclude that 
future generations will resemble their forefathers ; but it 
can be made probable only in this manner ; while abso- 
lute consciousness gives us absolute certainty. Take 
for instance, " I know I am ;" this is more certain than 
any mathematical proof can be made, for even that has 
first to rely on some axioms, which presuppose not only 
my existence, but also a belief in my own judgment 
and the power of the mind to draw correct conclusions. 

XIII. Precisely similar to the foregoing, with regard to 
its origin, is the idea: "we ought," "thou shalt" or "shalt 
not " — the idea or consciousness of right or wrong. 
The subtlest intellect, the most vigorous mind unaided by 
anything else, cannot arrive at any other idea, with regard 
to an action, than that of expediency, fitness, correctness, 
respecting the choice of means for the object in view. 
Yet we find with all men, the very lowest, or most bar- 
barous not excepted, a feeling of: "he ought" or "he 
ought not" entirely independent of the expediency or 
judiciousness of our action — in a word, we find the 
moral element in the human soul — the consciousness of 
right and wrong, not of a particular right or wrong, but 
simply that there are actions which can be called right, 
and others which are wrong independently of their ex- 
pediency. Neither experience, nor revelation, nor any- 
thing else could have given, or can have been a substi- 
tute for this original consciousness of ought or ought 
not — of right or wrong. 

Suppose for a moment, there was no idea of right or 



24 Ethics in General. [book i. 

wrong in your mind — no feeling of ought or ought not ; 
though this supposition is as difficult a process, as that 
of imagining ourselves for a moment without any notion 
whatsoever of color ; for we are primitively conscious of 
them, and it is exceedingly difficult to imagine ourselves 
even for a moment not to be conscious of that of which 
we are conscious. Indeed we never can wholly succeed 
in this process, because this consciousness forms part 
of our very self. Suppose, however, as well as you can, 
you had no feeling whatever of right or wrong, what 
could possibly prevent you from stealing anything of 
which you are in want, and if convinced, as in some 
cases you well might be, that detection of the theft itself 
is impossible, that the article will never be missed ? 
Experience? I ask, what experience? — External ex- 
perience ? For instance, that thefts are generally dis- 
covered? Our experience may lead us to the very con- 
trary. We may be a lawyer, and by experience have 
become convinced, that the greater number of thefts re- 
main undiscovered and unpunished. Or that we know 
by experience from observing others or ourselves, that 
doing wrong does not afford lasting pleasure ? Then 
I ask, what pleasure, external or internal? If external 
be meant, the assertion is unfounded, for many men live 
a most comfortable life to the end of their days with 
means fraudulently or criminally acquired. If internal 
pleasure be meant, it is only another expression for the 
pleasure, or applause, we feel independently of the ex- 
pediency of our action, which is the very thing I insist 
upon. Or, because we know by experience that no 
one will prosper upon fraud? This is unsound again. 
People, families, dynasties, many successive generations 
have prospered upon fraud and crime ; every day's ex- 



sec. xi.] Conscience. 25 

perience as well as history prove the fact. God has 
given to man a far higher character, and the order of 
things in creation is founded upon a far different princi- 
ple than the gross one that worldly misery follows upon 
wrong, and prosperity upon right in each case. Indeed, 
it would not be a moral world, if the necessary conse- 
quence of theft were the withering of the arm that com- 
mitted it; if the tongue that lies were stricken with 
palsy. On the contrary it would be a non-moral world, 
a world of necessity and not of freedom of action. It 
is unsound, it is immoral to teach the young that by 
virtue they necessarily insure worldly success. The 
truth ought early to be inculcated, that virtue may 
not lead to success, that it may lead to far greater pangs 
than those who are not virtuous ever can feel, for the 
very reason that they are not virtuous. — Or because 
revelation says, Thou shalt not steal? Suppose we 
have no feeling of right and wrong, or which is the 
same, that we ought to do what is right, and ought not 
to do what is wrong — and it will be recollected that we 
argue under this supposition— what should induce us to 
obey revelation even if we had acknowledged it as such? 
It must needs remain an entirely extraneous matter to 
us. No revelation could be addressed to non-moral 
beings. Or do we obey revelation merely because 
punishment is threatened to the disobedient here as in 
the world to come ? This will not be claimed by any 
true believer, for two reasons. Fear of itself is no moral 
motive. The animal which does or omits certain things 
because it knows that chastisement will follow disobedi- 
ence, does not act morally on this account. So marked 
is the difference between the action of the animal and 
man in these cases, that some languages, e. g. the Ger- 

VOL. I. 4 



26 Ethics in General [book i. 

man, have distinct words for the infliction of evil in con- 
sequence of prohibited action, with or without reference 
to the moral character of the punished action. But let 
us even waive this point ; what can at all give birth to 
a belief in the punishment with which we are threat- 
ened for immoral acts or the wrong we do, if we have 
not previously the notion of right and wrong, and that 
therefoi^e the latter deserves punishment, because we 
ought not to have done it ? 

XIV. This original consciousness of right and wrong 
— this consciousness of we ought or ought not, is called 
conscience, from the Latin word conscientia, conscious- 
ness, from conscio, con and scire to know, applied to 
this specific consciousness of right and wrong, conscien- 
tia boni et mali, recti et pravi, because it is the most im- 
portant of the different species of consciousness. In 
many, perhaps most languages, the word, which desig- 
nates this consciousness, is derived from a correspond- 
ing root. The German Gewissen, is derived from the 
verb wissen to know, to wit: The Greek ovvddrjOig is 
etymologically the same with the Latin (1). 

I repeat, the experience of pleasure cannot give us 
the notion of right and wrong. I ask, who has cast an 
account of all actions in his life which have afforded him 
sensual pleasure, (for as to the other kind of pleasure I 
have already shown that it coincides with what is claim- 
ed), or made out a list of all actions with which he has be- 
come acquainted both in history and his own experience, 
and of those which have given him unpleasurable or 
painful sensations, and accordingly made up his opinion 
what actions he will call good or bad ? Besides, if we 
adopt this ground, what have we to oppose to those, 



sec. xiv.] Conscience. 27 

who maintain, and in truth too, that those actions 
which we call vicious, criminal, or villanous, have given 
them the greatest pleasure, for instance, the entrapping 
of unwary innocence 1 There have been not a few 
people who have found delight in cruelty itself, i. e. in 
the infliction of useless pain, though they felt they 
were doing wrong. The fact cannot be denied ; ob- 
servation as well as personal confessions confirm it ; 
and yet conscience does not only act in despite of it, 
but approves in those cases most in which we feel most 
compelled to act contrary to pleasurable sensations. 

Conscience is, then, an original consciousness of right 
and wrong, not of a specific right or wrong ; it is the 
consciousness according to which we are undeniably 
aware that a difference of right and wrong, good and 
bad exists. Like every species of consciousness, that 
of our existence not excepted, it begins with an indis- 
tinct feeling, and becomes clearer, the more effectually 
the matured mind (both matured by the age of the in- 
dividual and the progress of civilisation) acts upon it. 
So it is with the beautiful, so it is with all ideas we re- 
ceive through the senses. The sense of sight is first 
but dim. The mind must act upon the impressions re- 
ceived, and the sense itself must be practised before it 
becomes clear. People who live in large cities, see no- 
thing but one vast green mass when they view a forest 
from the top of a hill, while the practised eye of a hun- 
ter, or ranger of the wood, discerns at once numerous 
and important differences. Most astonishing instances 
of the degree to which the keenness of the eye can be 
improved and how rapidly it may work in observing dis- 
tinctive marks, are on record (2) ; yet the sense of sight is 
innate, or the idea of color could not have possibly been 



28 Ethics in General. [book i. 

arrived at. As the human eye observes at one time a 
horse, at another a stag, and as the intellect arrives, from 
these two perceptions, at the perception of a quadruped, 
or perhaps at that of brown color ; so does man feel at 
doing certain things, that he ought to have done them or 
not, and by the operation of the mind constantly analys- 
ing and generalising, he arrives gradually at more dis- 
tinct ethic notions. Conscience is developed, cultivated, 
made delicate in conjunction with reflection, the devel- 
opment of our feelings in general, and experience ; but 
the consciousness of right and wrong is primordial and 
general. On this last point I shall say more. 

(1) 2wsi8i]aig from ovvoida, I am one who knows, is conscious 
of a fact. It is the form of the perfect with the signification of 
the present tense of £*#w, fdco, video, I see, a verb never used in 
the present tense, and the remaining tenses of which form two 
different families, one of which retains the signification of seeing, 
the other that of knowing, so closely connected with each other. 
See Passow's edition of Schneider's Greek Lexicon, ad verb. 
EMJ2, conscious sum. 

(2) Thus the English papers of the early part of 1837, com- 
municated the following fact, with names of persons and places, 
so that little doubt as to the truth of the matter can remain. A 
wager was won in the parish of Rewe by a Mr. Whipple, who 
engaged to take sixty ewes promiscuously out of his flock and 
have their lambs penned off from them at a distance ; and to go 
to the ewes, fix upon one, and then proceed to the lambs and select 
the one belonging to the former ; the next time to fix upon a lamb 
and then point out the proper dam among the ewes. The wager 
was won without a single mistake, to the perfect satisfaction of 
the judges — all impartial and well-experienced farmers. 

XV. The question as to what conscience is, and 
even as to its very existence has become one of the 
greatest magnitude, since some philosophers have main- 
tained the innateness of certain ideas, and their conse- 



sec. xv.] Locke's Theory of Conscience, 29 

quent denial by others. It is a fact on record in the 
history of philosophy that some have maintained the 
innateness of ready-made ideas, if we may use this 
expression. On the other hand, those who denied 
them, confounded, in their arguments, ideas, notions, 
rules, principles and consciousness with what is arrived 
at by the action of the intellect in conjunction with this 
consciousness upon received perceptions. Locke, one 
of the foremost of those that denied innate ideas, is 
likewise one of the foremost in this confusion of terms, 
and, at times, illogical use of them. He calls conscience 
" our own opinion or judgment of the moral rectitude or 
pravity of our own actions " (Book I., Chap. III. On 
Human Understanding), and then proceeds to show 
that it cannot be inborn, which is quite correct, for the 
very term. " opinion " involves the idea that it is some- 
thing arrived at by reflection. Reflection is an act of 
the mind ; how can it then be inborn ? A faculty may 
be, an action cannot. But though it is easy to refute 
this erroneous definition of conscience, he uses, besides, 
untenable arguments in proof of his position. He ap- 
plies one of his general arguments against all innate 
ideas, also against the innateness of conscience, namely, 
if they were inborn they must be as active in the child 
as in the adult. If this be sound, I ask, whether the 
sense of sight and all the other senses, upon which 
Locke relies so firmly, be not innate, though Mozart, 
when an infant of two days old, was, certainly, 
unable to distinguish between the sweetest harmony 
and a grating discord ? Is the sense for harmony not 
inborn, because the savages know nothing of the con- 
cord of sounds ? If not, whence do we derive it ? 
Have the civilised nations agreed to be delighted with 



30 Ethics in General [book i. 

accords and to be displeased by discords ? Are eighths, 
fifths and thirds inventions ? Is sight not inborn, be- 
cause the puppy is born blind ? This argument of 
Locke's rests upon the unfortunate mistake, which so 
many millions of people, whether on his side or not, 
have committed in confounding the idea of artificiality, 
or unnaturalness, with that of development. Thou- 
sands of the acutest instincts, which cannot possibly be 
denied to be such, are yet not active in the young 
animal. Locke, in discussing the irmateness of con- 
science, argues altogether on moral rules, and even then 
he does not use the proper means ; while at other 
times he says : every one must see the reasonableness 
of a certain moral act. Nothing is easier than to 
admit the reasonableness of the actions mentioned by 
him, if we admit the primordial consciousness of right 
and wrong ; if not, the very word reasonableness does 
not apply to human actions any more than to those of 
the brutes. The animal sees no reasonableness in the 
demand that we shall not kill another for trying to get 
its food, obtained by hard exertion. Locke further 
opposes the innateness of conscience on account of the 
variety and disagreement of moral feelings. This is 
not distinct ; moral notions vary, the feeling does not 
except in degree, but not in kind. For the moral feeling 
furnishes us with nothing more than the consciousness 
of the fact that we can and must attribute a moral cha- 
racter to our actions, i. e. to ourselves. We waive this 
point however, and proceed on Locke's argument 
itself. According to him the mind is a blank paper on 
which our senses write impressions, which the intellect 
analyses and combines. Now, by what sense can any 
moral notion, be it the humblest, enter into our mind ? 



sec. xvi.] Locke's Theory of Conscience. 31 

Things, themselves are black, large, ponderous, &lc. but 
never moral or immoral, nor are the outward signs or 
manifestations of actions, any more so ; for killing, beat- 
ing, speaking, are neither moral nor immoral of them- 
selves, any more than the axe, with which murder has 
been committed. If then the notion of morality cannot 
come from without, it must, according to him, be derived 
from the intellect. But the intellect, unaided by any- 
thing else, cannot possibly arrive at any other idea with 
regard to actions than that of utility, efficacy, expedi- 
ency, judiciousness, or the contrary. It analyses and 
combines the perception of things, but it does not 
infuse new elements of thought or feeling. Again, 
how can he explain the variety of moral opinions, in his 
way ? There is no innate consciousness of right or 
wrong, he says, because there are various opinions 
respecting the morality. If so, then there are no innate 
senses or is no innate mind either, for the variety of 
moral opinions would prove this according to himself. 
The truth is, the variety of moral opinions is owing to 
the intellect which operates with the moral and sensual 
sensations combinedly. 

XVI. Some French philosophers who carried the 
theory of Locke to an extent, which he did not 
contemplate, but which was nevertheless a consistent 
progress on the path he had begun, and who did not 
stop short of absolute sensualism, have endeavored to 
show that conscience is made by education, law, gov- 
ernment, &c. The author of a work entitled Mes reves 
ou Part de ne pas m'ennuyer ascribes the invention of 
conscience to the Egyptian priests in order to complete 
human civilisation — a very useful and wise invention! 
When was the sense of sight invented ? 



32 Ethics in General. [book i. 

If we ask how does the idea of good or bad enter 
the human mind, we are told by the followers of the 
theory of sensualism, because we have been told so; 
but who told those that tell us? I declare myself utterly 
at a loss to conceive, even for argument's sake, how a 
new principle can be talked into the human soul, not to 
speak of the impossibility of making anything universal 
which is not founded upon some principle in the hu- 
man soul itself. The objection of Locke that moral 
rules require proofs, ergo that they are not innate, is 
perfectly correct. Moral rules cannot be innate; for 
rules are the effect of reasoning ; though I shall have 
to say a word or two on this point also. 

XVII. I maintain: 1. Conscience is universal. 2. 
The uniformity of moral rules is greater than their dis- 
agreement, especially with civilised people, with whom 
this consciousness, therefore, as every other species of 
consciousness, has been most developed and shows 
more clearly its essential nature. 

1. Conscience is universal. It has been mentioned 
already that those who deny the innateness of con- 
science cite, as one of their strongest arguments, not 
only the difference of moral opinion but the fact that 
actually some tribes consider laudable what others 
punish or would punish as the vilest crime. I do not 
deny the fact, and shall bring stronger ones than 
Locke has offered ; for they will only become the 
stronger proofs on our side. That people have burnt 
and racked their fellow creatures, catholics, protestants, 
and protestants, catholics — some of whom at least 
believed they did right while they perpetrated their 
religious crimes — every one knows but too well Yet 



sec. xvii.] The Battas. 33 

Locke said he believed in the bible, and all of 
those persecutors said likewise that they relied for the 
rectitude of their actions on this book. This, then, 
according to Locke's rule, must effectually destroy 
that character of the bible which he nevertheless 
ascribes to it. Men relish very different articles of 
food, and some desire what to others is loathsome. 
Does there not exist, on this account, an innate instinct, 
which tells us that we must eat when we are hungry, 
nor any innate sense of taste 1 

When Bruce first published his account of Abys- 
sinia, people would not believe that the inhabitants 
of that country feasted upon meat cut out of living 
oxen close by the fire, so that the steak may be swal- 
lowed, w T hile yet quivering. Alas ! Facts worse than 
this have become known since then. The Battas, a 
nation of Sumatra, eat their prisoners alive, after regular 
trial, if found guilty for adultery, midnight robbery, 
intermarrying in the same tribe, treacherous attacks on 
a house, village or person, or if the prisoner has been 
taken in wars of importance. The prisoner is tied to a 
stake and the injured party cuts out first a choice 
piece, which is immediately despatched, either grilled 
or dipped in sambut — a mixture of salt and pepper. 
Certain parts of the body, as the palms of the hands 
and the soles of the feet, are considered great delicacies. 
The heart is also much liked, and many drink the blood 
through bamboos. What makes this heart-rending ac- 
count still more appalling, is the fact that the Battas have 
a government, write, cultivate the ground extensively, 
believe in a god, and have many fine qualities, superior 
to those of the surrounding nations. The fact cannot 
be doubted. Sir Stamford Raffles investigated the 

VOL. I. 5 



34 Ethics in General [book i. 

subject personally and states it upon unimpeachable 
testimony in a letter to Mr. Marsden, dated February 
27, 1820. (Life and Public Services of Sir Stamford 
Raffles, 4to, p. 425) (1). The Battas speak of this 
cruelty with the utmost calmness. 

But we need not go to what we are in the habit of 
calling savage tribes to find instances of such enormi- 
ties. The Spaniards, who conquered the southern con- 
tinent of America, committed every species of cannibal- 
ism, except eating human flesh, which seems to us 
unessential. It may increase our physical disgust, but 
morally we feel more disgusted when we read of 
Indians, being slowly roasted, or worn down by exces- 
sive labor, to satisfy the diabolic lust for gold; when 
we find the names of mastiffs handed down to pos- 
terity, because they distinguished themselves in hunting 
and tearing the Indians, for which their masters received 
the regular share of booty allotted to an armed man. 
Leoncico was the name of the bloodhound belonging 
to Nunnez. And all this in return for genuine kind- 
ness and humanity ; for " the Indians always did more 
(by way of hospitality) than they were bid to do," as 
bishop Las Casas testifies. Refined torments were paid 
back in return for unsuspicious and kind reception. 
(See Voyages and Discov. of the Comp. of Columbus, 
by Washington Irving, Phil. 1S31, especially the Lives 
of Ojeda and Nunnez). 

I was walking one day in the streets of Rome, when I 
met with a nurse who had strung a number of chaffers on 
a knitting-needle, in order to amuse the infant she held 
in her arm, by the contortions of the tortured animals. 
When I expressed my horror, the answer was : ma non 
e roba battizata (but it is unbaptised stuff). 



sec. xvn.] Universality of Conscience. 35 

Are these instances, however, anything else than in- 
stances of perverted judgment or a moral feeling which 
has been unfortunately made callous by the former? 
The Battas, before they eat the prisoner, give him, ac- 
cording to their notions, a fair trial; and what is the 
fundamental idea of a trial? That justice be done? 
What kind of an idea is justice, if not an ethical one? 
The animal, incited to eat its kind, would not wait in 
this case, but destroy the desired object at once. Those 
Spanish adventurers, cruel almost without parallel, from 
the meanest of motives — the yearning for riches, were 
most " chivalrous, urbane and charitable " toward each 
other, ready to make any sacrifice. Those that were 
vindictive, bloodthirsty, and without any faith toward 
the Indian, were magnanimous and full of honor toward 
each other. (See Irving as above, chap. xii. ; Ojeda's 
third voyage). The principle of morality had, therefore, 
not been plucked out of their hearts ; but bigotry and 
avarice had perverted their judgment and moral feeling. 
The Indian was not considered within the pale of ethic 
obligation. 

The Italian girl would have felt very indignant if 
some other cruelties had been laid to her charge. I 
have become acquainted with the existence of no tribe, 
however low or barbarous, which does not consider 
some things right or wrong independently of their desir- 
ableness. The account lately given by Mrs. Frazer 
and her companions in misery, before the Lord Mayor 
of London, of the New-Zealanders, among whom they 
were wrecked, and who at times eat their own children, 
is every way distressing indeed ; but these very New- 
Zealanders would probably have been very angry at an 
ungrateful return to an act of kindness on their part, 



36 Ethics in General [book i. 

merely on account of the ingratitude with which their 
kindness was requited. 

I have become acquainted with the life and actual 
state of mind of many criminals, and never have I met 
with any convict, however depraved or however proud 
of the crime he had perpetrated, and however free at 
the time from all compunction, who would not have felt 
incensed at the imputation of some crimes or even merely 
immoral acts, for instance, that of betraying his wife. 
A remarkable observation I have made is this, that few 
criminals — I never found yet one — are willing to confess 
arson. Any other crime will, at times, be readily con- 
fessed ; but not arson. Why ? Because it is more of 
an imputation upon the honor of the man. Because the 
crime is meaner, i. e. more immoral in the eyes of the 
criminal than any other. 

The fact that bands of criminals will always form a 
certain moral code among themselves, shows the inalien- 
ably moral character of man, however perverted his judg- 
ment and feeling may be by passions. A robber says, 
"the world has treated me badly, I treat it badly in 
turn," or, " they are rich, I am poor, why should I re- 
main so V 9 But within the band, the same robber might 
feel indignant at theft or cheat. The same is the case 
with smugglers, or with christian merchants who smug- 
gle opium into China, though they know it leads to the 
destruction of the infatuated buyers. They may, in their 
perverted judgment, consider the Chinese out of the 
pale of civilisation, yet the consciousness of right and 
wrong has not left them on this account. It cannot be 
torn from out the human soul. 

(1) An extract from this letter may be found in a volume of a 
work more generally diffused, namely: the New-Zealanders, page 



sec. xviii.] Uniformity of Moral Codes. 37 

108 & seq. forming first part of that excellent publication, the 
Library of Entertaining Knowledge, published under the superin- 
tendence of the London Society for the Diffusion of Useful Know- 
ledge. 

XVIII. 2. The uniformity of moral rules is greater 
than theirHlisagreement. The moral ^codesof \nearly all 
nations prove it. They all, for instance, disapprove of 
murder, L e. the taking away human life maliciously or 
uselessly, but they disagree as to what useless is. 
They disapprove of theft, but they do not agree on 
what constitutes theft, e. g. at Sparta, a youth might 
steal certain things, but by no means others, &c. This 
will appear much clearer when we come to speak of the 
general moral law. Here we merely add, that there is 
a natural or innate horror at certain specific crimes, 
which cannot be denied. We know that man can be 
reconciled to the worst by custom, yet on the other 
hand, it takes time to denaturalise him as to some ac- 
tions, for instance, murder. In a work of thrilling inter- 
est, lately published at Calcutta, (1) an authentic ac- 
count is given of the thugs — that religious fraternity of 
strangling thieves in the East Indies. We find there, 
from the testimony of many thugs, witnesses perfectly 
respectable, and who are borne out by the most intelli- 
gent Europeans, resident in the East, that there has 
existed for centuries, an extensive sect of robbers, who 
have carried on murder and robbing so systematically 
and professionally, that strangling became a species of 
art, a trade with proper technicalities, and requiring a long 
and patient apprenticeship. Thousands have belonged to 
this sect, and not one ever felt remorse at what he had 
done. Nor was this diabolical trade attractive by its 
perils and excitements and to appease the conscience of 



38 Ethics in General. [book i. 

the adventurer by his own personal exposure to danger, 
which not unfrequently appears to the daring criminal 
as equalising the state of things between the robber and 
the robbed. On the contrary, the thug enveigles, and 
tries with infinite patience to gain the confidence of the 
traveller, until at the proper place and time he strangles 
his victim while the apprentice holds the legs in perfect 
security. They infest land and river under all guises, 
make no distinction as to sex or age, to confidence 
shown them, or reliance placed upon their protection. 
The account given in the work alluded to, with all its 
atrocity, the utter absence of what we expect to find 
with most people, the monstrous perversion of judgment 
and of religion which here again is made to appease 
conscience and to annihilate the simplest elements of 
morality, for which zealots, barbarians, and criminals have 
at all ages perverted it, is sickening and humiliating in- 
deed — and probably more so than the barbarity of the 
Batta, when he cuts a slice from his living enemy ; yet we 
must not forget that monstrous as thuggee is, the thug 
never pretended to be absolved from the general rule of 
morality, never denied the difference between right and 
wrong. He throttles to rob indeed, but the murdered 
person is but the victim thrown into his hands by Devee 
or Kalee, the goddess of destruction of Hindoo mythol- 
ogy, and the only one requiring human sacrifices — a 
goddess acknowledged by all Hindoos, yet especially 
worshiped by the professional stranglers, her votaries 
— " several thousands of persons pursuing murder as a 
trade — generation after generation, not one of whom 
entertained the least suspicion that he was doing wrong." 
A convenient mythology of their goddess explained 
why they pursued murder in this way, and why they 



sec. xviil] The Thugs. 39 

were right in doing so, even though they murdered ac- 
cording to their own confession for robbery alone. The 
thug, however, thought no strangled person would 
haunt him, because the victim thus offered to his god- 
dess went directly into paradise. The thugs are gen- 
erally amiable men at home and in society, good fathers 
and husbands, and, with the exception of thuggee 
(thuggism) belong to the most peaceable class of citi- 
zens. But in this book, we do not meet merely with 
facts which show that mistaken religion can silence any 
voice within us, and mistaken religion more quickly and 
effectually than anything else; we find on the other 
hand that the human heart requires at least an appren- 
ticeship to become inured to the trade of murder. 
" They (the apprentices) neither see nor hear anything 
of murder during the first expedition. They know not 
our trade ; — they get presents, purchased out of their 
share, and become fond of the wandering life, as they 
are always mounted upon ponies. Before the end of 
the journey, they know that we rob. The next expedi- 
tion they suspect that we commit murder, and some of 
them even know it ; and in the third expedition they 
see all." Amidst the testimony of so much cold- 
blooded murder, the reader feels almost relieved for a 
moment, by way of vindication of human nature, when 
perusing the passage in which a witness testifies that 
his cousin Kurhora, was taken for the first time to a 
thug expedition, when about fourteen years of age. By 
an oversight of the person who had charge of him, while 
the strangling of many persons was going on, Kurhora 
escaped and rode up to the scene of murder, where he 
was so overcome by the shocking transaction that the 
sight of the turbans of the murdered men made him de- 



40 Ethics in General, [book i. 

lirious ; he uttered screams at the approach of a thug, 
and before evening arrived, he was dead. We owe an 
active, well-concerted and effectual suppression of the 
thugs to lord Bentink, governor-general of India, who 
has inscribed his name on the pages of the history of 
civilisation by abolishing the suttees and whipping in the 
native British army of the East. 

Not only are moral codes more uniform than it 
has been frequently supposed, but even the laws of 
nations. Still, though they were far less uniform, it 
would prove nothing against our position. We con- 
tend here for the moral principle, being absolute and 
universal. Nations may rest in very different ways, sit- 
ting, reclining in hammocks, or lying on couches, but 
all must acknowledge the principle that rest is requisite 
after exertion. 

With regard to the uniformity even of laws, I cannot 
but conclude this section with an extract of Mr. Miche- 
let's Origin of French Law lately published. He 
says : 

" We have studied the juridical symbol under the 
two points of view, of its age and its nationality which 
diversify it infinitely. Nevertheless whatever variety 
may be discovered, unity predominates. It is an im- 
posing spectacle to find the principal legal symbols com- 
mon to all countries, throughout all ages." 

" In truth, to one who considers not the human race 
as the great family of God, there is in those multitudi- 
nous voices, out of hearing of each other, and which, 
nevertheless, respond each to each from the Indies to 
the Thames in reciprocating sounds, wherewithal to dis- 
may the intelligence, to strike the heart and spirit of 
man with consternation." 



sec. xviii.] Uniformity of Moral Views. 41 

" Transporting was the emotion which I myself ex- 
perienced, when, for the first time, I heard this universal 
acclaim. Unlike the skeptic Montaigne, who so curi- 
ously ferreted out the customs of different nations to 
detect their moral discordancies, I have found a consen- 
taneous harmony among them all. A sensible miracle 
has arisen before me. My little existence~oTlhe"mbment 
has seen and touched the eternal communion of the 
human race." 

Far more striking, however, is the uniformity or, at 
least, agreement of the moral views, when we observe 
the daily intercourse of individuals and nations. There 
are many exceptions, undoubtedly, and yet they are 
after all but exceptions ; but they attract more attention 
because they are exceptions. Let a foreigner, a Euro- 
pean, join a caravan of Arabians, and observe how 
much more they ethically agree than disagree, though 
born in different climes, nurtured by different associa- 
tions, reared in different religions. 

(1) The work, with which I am acquainted through extracts 
only, given in an article, to be found in the January number of 
1837 of the Bdinburgh Review, is entitled : Ramaseeana, or a 
Vocabulary of the peculiar language used by the Thugs. With 
an Introduction and Appendix, descriptive of the System pur- 
sued by that Fraternity; and of the Measures which have been 
adopted by the Supreme Government of India for its suppression ; 
8vo. Calcutta, 1836. When the article was writing, the printed 
work had not yet been published. Since the preceding lines were 
written, a work — Illustrations of the History and Practices of the 
Thugs, &,c. Lond. 1838, has been published. 

XIX. One question remains to be answered, namely : 
is not sympathy alone sufficient, to explain the pheno- 
mena of the moral world, if we consider this deeply - 

vol. i. 6 



42 Ethics in General. [book i. 

seated feeling under the refining and perfecting action 
of the intellect ? Not a few philosophers have thought 
that it is. 

I do not only admit sympathy as one of the element- 
ary agents in the moral world, but I claim it as the 
most active primitive element, in everything by which 
man is tied to man. Though of an inexplicable and 
mysterious origin, though, in many cases of a decidedly 
animal character in its first beginning, yet man unfolds 
and perfects it to a degree that it stands before us as a 
subject as sacred as anything that can inspire the human 
breast with pure and elevated feelings. Is there a more 
sacred relation between man and man, than that of a 
wise and proud mother and her affectionate and devoted 
son ? Yet in its first origin maternal love in the human 
race is the same instinctive affection we meet with in 
the brute creation. Nor does it stop here. There are 
many striking instances of a continued animal affection 
for the young, which, in default of offspring, passes over 
to that of other parents. A colored woman has come 
under my personal observation, who keeps herself con- 
tinually surrounded with several pets, as sjie calls the 
infants which she begs of her acquaintances, that she 
may have the pleasure of bringing them up. The name 
she gives to these children, sufficiently indicates her 
feeling and relation toward them. It is that fondling 
love which we observe so strongly developed in some 
animal tribes. * This woman takes no compensation for 
what to others would be trouble, but to her affords 
that enjoyment which every creature derives from satis- 
fying a desire deeply planted in it by nature. Her 
entreaties to give up to her, but for the limited time of a 
year or so, an infant, are very striking. 



sec. xix.] Sympathy, 43 

Though so deeply implanted and of so active a na- 
ture, however, sympathy is not sufficient to account for 
the moral character of man. In numerous, perhaps in 
most cases, sympathy forms a component part of our 
moral actions, but in some it is directly opposed to our 
conscience ; cases of this kind are by no means of rare 
occurrence. The judge who passes sentence on a 
prisoner is not supposed to be dead to all sympathy 
with the unfortunate convict. No person that knows 
anything of the secret history of criminals and of him- 
self, can go through a penitentiary without confessing, 
that had he passed from childhood through the same 
circumstances and scenes, which encompassed many 
inmates of the prison, from their earliest years, he pro- 
bably too would be in the same unfortunate situation. 
Yet this individual may be at the same time a strict and 
conscientious superintendent of the penitentiary. A 
soldier who fights faithfully and boldly for his country 
is not, on that account, destitute of sympathy, not even 
at the very moment he fires upon the enemy. There 
is no battle which does not afford evidences of this fact. 
Sympathy alone or in conjunction with the intellect 
only, could not have led man to the idea of morality and 
immorality, of right and wrong. It would, indeed, have 
prevented its perfectly clear perception. It may be 
concentrated to such a degree that it becomes mere 
passion, as, for instance, in some cases of affection 
towards a particular individual, with regard to whom 
nevertheless no other natural instinct, as that existing 
between the different sexes, of approximate ages, can 
be alleged, in which latter case love appears to me 
sympathy concentrated both as to intensity and the 
individual toward whom sympathy acts. Sympathy 



44 Ethics in General. [book i. 

may be increased to such a degree that it becomes 
disgusting, because it sinks to a wild, almost brutish 
intensity. " Spencer tells us that once, when he was 
present at Limerick at the execution of a notable 
traitor, Murrogh O'Brien, he saw an old woman, his 
foster mother, take up the head and suck the blood, 
saying that the earth was not worthy to drink it, and 
then steep her face and breast in the streams which 
flowed from his other quarters, while she tore her hair 
and shrieked most terribly." (1) We are obliged then 
to acknowledge conscience as an original and primitive 
consciousness, though we allow sympathy to be a most 
active and indispensable element in man in general, and 
a powerful coefficient in moral actions. 

(1) I copy this account from page 445, Vol. I. of Brodie's His- 
tory of the British Empire, Edinb. 1822. 



(45) 



CHAPTER III. 

Ethical Character of Man. — How does Conscience act ? Is it alone an 
Oracle or perfect Index? — Practical Moral Law. — Man's Individual- 
ity. — Morality founded upon it. — Our Ethic Character is inalienable, 
hence our Responsibility likewise. — Ethic Experience and Skill. — 
Various Ethic Systems. 

XX. Superior intellect, peculiarly expansive and 
refinable sympathy, freedom of will and rationality (or 
self-determination of volition) and conscience constitute 
man's ethic character — his moral dignity, the acknow- 
ledgment of which alone is sufficient to make us at 
once conscious of the great law, "Thou shalt not 
debase in thyself or in any fellow-man, man's moral 
dignity ;" a fundamental law from which we derive, in 
ethics, the duties of man ; in natural law, his rights. 
The very character of the ethic attributes of man, in- 
volves the direct acknowledgment of the law just men- 
tioned. Conscience tells us so ; we cannot do other- 
wise ; we must acknowledge it, it is " a law written in 
our hearts," it is the law which rests on the conscious- 
ness of right and wrong, or by which, as the apostle 
expresses it, men are a law unto themselves (1). If it 
be denied we could not prove it ; if a man should say, 
I deny the moral value of man, I use every one simply 
according to my interest or gratification, I want to 
make my children brutes, I want to kill men as I kill 
animals — we could do nothing, but refer him to his 
own conscience and to his own acts, inasmuch as he 



46 Ethics in General. [book i. 

will never allow a wrong, done against him, to pass 
without charging the offender with the wrong, or with- 
out making him accountable, which is nothing less than 
attributing to him a moral character. Reason, there- 
fore, which makes us acknowledge this law at once, not 
by induction, syllogism or any proof or process of rea- 
soning, is said to possess in this case, autonomy, i. e. 
it is its own law ; or the law itself as such, is acknow- 
ledged at once, from avuoq self, and vouog law. 

(1) "For when the Gentiles, which have not the law, do by 
nature the things contained in the law, these, having not the law, 
are a law unto themselves (iuvTotg vo/uog) ; which show the work 
of the law written in their hearts, their conscience also bearing 
witness, and their thoughts the meanwhile accusing or else excus- 
ing one another." Romans, ii. 14, 15. 

XXI. The superior intellect of man has been enu- 
merated among his ethic attributes, because it is as 
indispensable an element of his ethic character or moral 
dignity as any other which has been mentioned. It is 
an unfortunate mistake, both in those that pretend to 
deny the original existence of conscience and many of 
those who mean to act by it, that conscience consists, 
as it were, of one list of actions which we ought to do, 
and another, of those which we ought not to do, or of a 
sort of gage, which in each single case will, without 
previous cultivation or perfection, indicate infallibly what 
ought to be done, an oracle which need but to be 
referred to in order to receive a ready answer. That 
this is not the case appears at once from two facts: 
first, we find that people have at times committed the 
most atrocious acts, not only without feeling any com- 
punction whatever, as in the case of the thugs, but at 



sec. xxi.] Conscience alone no Oracle, Al 

times feeling actually decided self- applause. There is 
no ground, that we know of, to doubt that Ravaillac 
was perfectly at peace with his conscience, as to the 
correctness of his act, when he plunged the dagger into 
Henry's heart. Criminal and mean-spirited as at all 
times many of the religious persecutors have been, 
there cannot be, on the other hand, any doubt but that 
many thought that they were doing a most praisewor- 
thy work, while they heaped the faggot around a God- 
devoted heretic. Besides, every individual knows from 
personal experience that in the moral progress of the 
soul, he will now desist from doing things, respecting 
the morality of which at a former period he never even 
entertained a doubt. Secondly, if conscience were so 
simple and clear an index in every given case, however 
complex, how should it happen that the conscientious^ 
find themselves much embarrassed in cases of con- 
flict — the more so the more they are animated by an 
upright desire to do only what is right 1 

In this case, as in all similar ones, God has given us 
the principles, the seeds ; but he has not willed to make 
of men machines without the necessity of their own 
and independent mental and moral life, being developed 
and cultivated. As I said, that this world would not 
have a moral character if a withering disease were sure 
to consume the arm that steals, so would the character 
of man not be much more elevated if actually a sort of 
list of all good actions were written in the human heart, 
or if a certain and distinct sign, not to be mistaken, 
were given at every action by way of approval or dis- 
approval, however complex its character might be, on 
account of a conflict of the most sacred interests. We 
are ordained to be men, and not to be impelled in 



48 Ethics in General. [book i. 

morals in a similar way as we have seen that the 
animal is by its senses. Man, under all circumstances, 
should guide his volition by the action of the reflecting 
intellect. There is a pain we feel at having done 
wrong — who would say he never felt it? But this 
very pain, or the pleasure in good actions is subject to 
reflection. We have then to cultivate the original con- 
sciousness of right and wrong by reflection. Man does 
not live long, even in the rudest stages of society, 
without feeling approval or disapproval at certain actions 
independently of their judiciousness or expediency. 
These actions are gradually made the subject of reflec- 
tion, the character of this approval or disapproval is 
meditated upon, and finally man arrives at certain ethic 
results, clearly represented to his mind. 

XXII. The consciousness that we ought to do right 
and ought not to do wrong, and the great ethical law, 
which springs, as we have seen, directly from the ethic 
nature of man, make it necessary that we should not 
only express our moral obligation, but, if possible, find 
a supreme law which may serve as a test for our ac- 
tions, by which in practice we may be more easily 
guided — a law or norma, of practical use — the law of 
virtue, as it has been called. Most philosophers, and 
many founders of religion have endeavored to establish 
a law of this sort, and it is cheering to the human heart 
to find how many of these have agreed upon so essen- 
tial a point, though separated by time and space in a 
manner that they could not be influenced by one an- 
other. It amounts practically always to this, "Do or 
omit that which thou desirest that others do or omit." 
We have of course to settle what we desire of others, 



sec. xxn.] Practical Moral Law, 49 

for we might desire very immoral things. A de- 
bauched person would be perfectly willing to allow 
others whatever vicious gratification they might desire, 
provided they allow him to go on as he chooses ; and, 
on the other hand, man rises highest when he is willing 
to make sacrifices to others which he does not desire 
others to make for him, when he frees himself from all 
egotism. Nevertheless the law will be found of great 
practical use if applied with good faith, i. e. conscience, 
for the very reason that it seeks for the regulator of ac- 
tions in our self-interest, and, therefore, comes practi- 
cally home to a greater number of people than any 
other law that could be devised. The law is especially 
important with regard to actions toward others, and 
includes all that belong to justice. 

The great philosopher Kant has expressed it sci- 
entifically thus : " Consider constantly and without 
exception the intelligent being as being its own proper 
end and which can never become a simple means for 
the ends of another ;" and by this other formula : "Act 
always in such a manner that the immediate motive or 
maxim of thy will may become a universal rule in an 
obligatory legislation for all intelligent beings." This 
fundamental moral law Kant calls, in his philosophical 
system, the categoric imperative, because it demands 
without proof, and every intelligent being must acknow- 
ledge its necessity, the justness of the demand. 

We find in Tobit, iv. 15, "Do that to no man which 
thou thyself hatest." One of the fundamental Chinese 
works (1) written about 453 before Christ, contains this 
dictum : " He who is sincere and attentive to do nothing 
to others, which he would not like them to do to him, 
is not far from the law ; he who desires that nothing be 

VOL.1. 7 



50 Ethics in General, [book i. 

done to him, which he himself does not to others." — 
" Therefore all things whatsoever ye would that men 
should do to you, do ye even so to them." Matthew 
vii. 12. It will be perceived, that this moral law is 
nothing else than the abstraction or generalisation of 
the primary ethic consciousness spoken of in sec. 
xiii. chap. ii. this book, manifesting itself in a feeling 
"he ought." Man probably becomes conscious of this 
ethical " he ought " in perceiving the acts of others, . 
and by natural generalisation, is bound, again with the 
assistance of his ethic consciousness, to include him- 
self in the abstraction by which he arrives at the 
above law. 

(I) This passage is taken from Chung Yung (or Invariable Mid- 
dle) one of the four Chinese works, called by the Chinese, The 
Four Books, or the Books of the four Doctors. See Abel Remu- 
sat, Nouveaux Melanges Asiatiques, Paris, 1829, vol.2, p. 112. — 
The Invariable Middle treats in thirty-three chapters of the middle, a 
sort of moral state toward which all human actions ought to have a 
tendency, and which alone is compatible with the inspirations of 
heaven, the objects of nature, the voice of reason, the dictates of 
wisdom, and the practice of virtue. The author of this work is 
the grandchild of the great Confucius ; he died sixty-two years old, 
about 453 before Christ. His surname as philosopher is Tsze-sze, 
translated by the missionaries into Interpreter of Holiness. 

XXIII. Man's whole ethic character is materially 
founded upon or can be imagined only in conjunction 
with his individuality. Man's individuality and sociality 
form the two poles round which his whole life revolves. 
Of the latter, the peculiarity in man that he can fulfil 
his destiny in a state of society with others only, and 
that he has to bear weal and woe jointly with his fel- 
low-creatures — I shall have to say more in the second 
book. As to his individuality, it is necessary to observe, 



sec. xxiii. Mail's Individuality. 51 

that man is what he is, first and essentially, as an indi- 
vidual. His senses, perceptions, thoughts, pleasures, 
pains, emotions, his reasoning, appetites and endeavors 
are individually his own, as much as his eating, respira- 
tion, digestion, are individually his own. Philosophic- 
ally speaking, he cannot act through another (1), his 
acts are his own ; for if he be forced to do anything 
against his will, he does not act in the philosophical 
sense of the term, but he suffers, is in a passive state. 
Action presupposes free agency. Man's responsibility 
is his own, for his reasoning and acting are his own. 
Fault, crime, virtue, excellence, goodness or immorality, 
are his own, and belong exclusively to the individual. 
Words have either a sense or not. If the words Ac- 
countable or Responsible signify anything, they involve 
the idea that I might, and, if I have acted wrong, ought 
to have acted differently, which presupposes free-will 
and individuality. For if my hands are bound I cannot 
be accountable for not assisting a fellow-creature in 
distress, nor have I free-will except with regard to my- 
self, because my volition is confined to myself, whom 
God, for this purpose, has constituted as a definite indi- 
vidual. " God, who will render to every man accord- 
ing to his deeds." Rom. xx. 6. " Single is each man 
born ; single he dieth ; single he receiveth the reward 
of his good, and single the punishment of his evil deeds." 
Ordinances of Menu, translated by sir William Jones. 
Lond. 1799. ch. iv. 240, or page 19 of vol. iii. of sir W. 
Jones's Works, 4to. edit. 

He alone that wills, acts, and he that acts is respon- 
sible. If a man lets loose a tiger upon a multitude, 
knowing the nature of the tiger, he is the murderer of 
all whom the tiger may kill, and the maimer of all whom 



52 Ethics in General [book i. 

he may lacerate and wound. For the tiger is bound, 
following simply its sensualism, but the man is free. 

Trite as these remarks may appear if thus clearly 
and separately stated, they have been by no means 
always acknowledged either in religion or law. 

(1) When we say in common life, "he acts through an agent," 
we mean, philosophically speaking, that he himself acts, and by 
thus acting induces his agent to act likewise, so that there are two 
acting individuals. No action without individual. 

XXIV. The penal codes of all civilised nations re- 
cognise individual indictments and punishments only. 
No body of men, corporation or society can be arraigned 
for a penal offence, though each and every individual 
may have borne an active share in it, because, as has 
been stated in the preceding section, responsibility is 
and for ever must be inseparably connected with indi- 
viduality. A body of men may be sentenced to 
damages ; for they may civilly form a so-called moral 
person in the eye of the law, that is to say, a society 
with certain peculiar civil rights and obligations, com- 
mon to all the members ; but no ethic idea is connected 
with such a damage, and the whole body cannot be 
sentenced to imprisonment for a crime, though each 
individual member may. Those only who committed 
the crime, e. g. by voting for it, or having a hand in 
executing it, can be made responsible. Thus is a 
merchant not liable to punishment, because his partner 
committed forgery, though closely connected with the 
commercial transactions of the house. Confusion of 
ideas, which in the course of civilisation almost always 
precedes clear distinction, as well as a desire of revenge, 
have often induced man to act upon opposite principles. 



sec. xxiv.] No Crime without Individual 53 

An interesting instance of this confusion of ethic ideas 
will be found below (1). When the Robespierrian 
Committee of Public Welfare was brought to condign 
punishment, Carnot, though one of its members, was 
exempted. 

When it is said, a state or nation is made answerable 
for some wrong done to another nation, the term is not 
used in a strictly ethic sense. Wars cannot be under- 
taken for the sake of punishment, speaking accurately ; 
because wars can exist between independent states 
only, one of which, therefore, has no right to punish the 
other, which would presuppose a lawful power over it. 

Punishment in this case means merely a resorting to 
that means, which the warring nation considers as the 
most suitable to prevent a recurrence of wrong, or to 
obtain restitution. A similar sense must be given to 
the word punishment, when whole provinces or any 
entire body of men are said to be punished, for in- 
stance, by the imposition of a fine, or the withdrawal of 
a charter. 

That in such cases the innocent have to suffer with 
the guilty, is the reason why nothing but absolute 
necessity should induce men to resort to these mea- 
sures ; and when absolute necessity of doing so exists, 
it affords only one more proof that man is imperfect, a 
being who cannot, in many cases, mete out the due 
reward to the guilty without affecting at the same time 
the guiltless. We are finite, and have to regulate our 
actions accordingly ; while the consciousness of our 
frailty, our finiteness, and the consequent deficient 
character of all human justice, will lead us to a still 
firmer belief in a perfect and supreme being, whose 
justice is perfect and absolute ; who can be just without 



54 Ethics in General [book i. 

affecting the innocent. If we contemplate for a moment 
the essential character of justice, founded upon man's 
accountable character, and this again upon his individ- 
uality, we see at once that if man is unable to act out 
these principles, this very fact is one more proof of his 
imperfect nature ; but it is a gross mistake to use that 
which is only the effect and proof of human imperfec- 
tion, in order to explain, by way of analogy; precon- 
ceived and erroneous notions of the deity. I cannot 
pass this remark without adding that analogy, if used 
as proof, and not simply as illustration of what has 
already been proved, in matters relating to the deity, 
is presumptuous and necessarily of a dangerous charac- 
ter, since it induces man to do that which he feels ever 
too much inclined to in his limited and finite sphere — 
to ascribe to the deity his own finite attributes. Bishop 
Butler, in his work on the analogy of Revealed and 
Natural Religion, appears not always to have escaped 
this fallacy. 

The individuality upon which all accountability or 
responsibility is founded, shows at once the crying 
injustice of all punishments which extend beyond the 
offender farther than their mere effect, according to the 
social existence of man, is unavoidable ; for instance, 
by way of affliction of respectable parents at their son's 
disgrace, or the misery of a wife caused by the impri- 
sonment of her husband, or the diminution of the 
inheritance of children by a fine imposed upon their 
father. I mean punishments such as confiscation of all 
property ; civil disgrace of whole families, attainder of 
blood. 

(1) The following appeared to me so remarkable an instance 
of deviation from the principle, that all morality is inseparably 



sec. xxiv.] No Crime without Individual. 55 

connected with individuality, that I have felt induced to give it 
here. I was lately in the Island of Porto Rico when a case oc- 
curred, which, whatever low idea we may entertain of Spanish 
administration of justice, still remains most surprising. An 
American and the chief partner of a commercial house in one of 
the seaports, was absent on a journey, when his junior partner 
received, by way of pay, several packages of maccacuina money. 
Without counting them, or examining their value, he passed them 
off again in the regular course of business transactions. This is 
done every day. At that time, however, a large importation of 
spurious maccacuina had been made and the counterfeit money 
began to circulate. It was strongly suspected, and perhaps 
more than suspected, that persons, high in authority, had shared 
in this foul transaction, and they were now desirous of fixing the 
guilt on some individual or other who had not participated in the 
crime. Be this as it may, a witness testified under oath that he 
had received a package with counterfeit maccacuina from the junior 
partner of the house, mentioned above. He declared that he had 
passed the package as he had received it, which is done every 
day, as I have stated already, and that he could prove that he 
had done so. This declaration was of no avail. It was said : 
you have passed the counterfeit money, no matter where you got 
it or how you passed it. This was one step in the affair. 
The next was, the declaration or assumption, that the gentleman 
in question had done so as junior partner of the house ; the third 
step, that the senior or chief partner is the most proper represen- 
tative of a commercial house ; and the fourth step was, that the 
latter was arrested, on his return, from a journey, for the alleged 
crime of his house having passed, and therefore probably imported, 
the counterfeit money. Nor was this the rash act of some ignorant 
officer, but the gentleman remained a considerable time imprison- 
ed, and was not finally released on the ground that he could not 
possibly be answerable, even if a crime had been committed by 
his junior partner. The monstrosity of the transaction shocks 
every one, even if he had never before clearly represented to his 
mind, that virtue or crime, in short everything of a moral charac- 
ter, is essentially connected with individuality. No wonder that 
Spain and all former Spanish colonies are suffering from endless 
political convulsions, if the people grow up with such utter con- 
fusion of the most elementary notions. — Napoleon made the 



56 Ethics in General. [book i. 

parents and near relations answerable for the desertion of the son 
or relative from the army. Bad as this measure was, it was never 
pretended, at least, that the responsibility for the act of desertion 
could possibly be separated from the individual who ran away ; 
but it was adopted by way of bare expediency. It was believed, 
it would induce the soldier, who otherwise might have no interest 
to stay, e. g. when he was from some German conquered depart- 
ment of the empire, not to run away; the parents or relatives 
were held as hostages. 



XXV. All ethic attributes of man are inalienable. 
He cannot, even were he desirous of doing so — and his 
wickedness in doing so would be equalled only by the 
absurdity of the desire — deprive himself of his moral 
character. Do what he may, or let others attempt what 
they choose, man does not and cannot become a non- 
moral or un-ethical being. He cannot barter away his 
reasoning power for whatever consideration ; for every 
moment that he adhered to such a compact, he would 
have to exercise his reason. Nor can others possibly 
deprive him of it, though they may greatly limit its 
action ; he cannot alienate his free-will and decide to 
be guided entirely by some one else. He must decide 
for himself, his conscience tells him so ; nor can others 
fetter his will, which belongs to man's rationality. He 
cannot bargain away his conscience and responsibility, 
because he shall and must be responsible, for he is not 
bound in his will and real action. He cannot submit 
to absolute obedience in whatever sphere this may be, 
because he cannot, if he choose, get rid of his ethic 
attributes, and he cannot divest himself of his individ- 
uality, and, therefore others cannot take his ethic 
responsibility upon themselves. There it hangs sus- 
pended over every single soul, "Thou art a human 



sec. xxv.] Man never a Thing. 57 

being, and, therefore, responsible, consequently thou 
must reason and will ; and thou hast reason and con- 
science, and, therefore, art responsible." No power on 
earth can obliterate this fundamental principle from the 
table of ethic laws. As thou eatest and drinkest for 
thyself, so thou actest for thy own soul. What man is, 
in mind and body, first of all, he is as individual. Yet 
he was not made to be selfish, and his creator con- 
nected him. with his kind by a thousand ties — by sym- 
pathy, love, friendship, and by the mysterious attach- 
ment growing out of the difference of sexes; he led 
him to the foundation of the family, which became the 
first starting point of moral cultivation, and the hearth on 
which the flame of a thousand things that are sacred 
and noble burns with its holy fire. 

It is this difference, that every human being has a 
moral character of his own, and that consequently, as 
we have seen above, we shall in no instance make 
another human being merely the tool of our ends and 
objects ; and that the animal is a non-moral being, a 
thing — from which we derive our justification of killing 
animals for food, or still more, of submitting them to 
great pains and suffering for the sake of science, the 
right to which will not be denied, though we all feel 
that it ought to be resorted to with the utmost care, 
not forgetting the painful feelings of the great physiolo- 
gist, Haller, in the evening of his life, at all the suffering 
he had inflicted on animals. Not a slave, nor even a 
criminal becomes a non-moral being, and it is immoral 
to experiment upon criminals, should they be subjected 
thereby to sufferings. I know of an instance when the 
surgeons of a regiment disagreed on some point of 
anatomy, and an officer promised to provide them with 
vol. i. 8 



58 Ethics in General. [book i. 

a subject, by ordering his soldiers to shoot one of the 
enemy's outposts. The officer did not do so, yet he 
was officially censured even for his promise. 

XXVI. Though, however, it is engraven in every 
heart that we ought to do right, and not do wrong, and 
though the simplest intellect will be ready to acknow- 
ledge our obligation to obey the fundamental moral 
law, as given above ; yet its application to the endless 
variety of cases, which offer themselves through life, 
requires experience in a twofold way. It is often easy 
to find the abstract truth, but difficult indeed to apply 
the ever- same truth to ever-changing reality. Experi- 
ence is required : 

1. Because in many cases doing right means nothing 
more than selecting that which experience has shown 
to be the best. If we find that a certain action, mea- 
sure or step, though in itself entirely indifferent, has 
invariably or generally produced evil consequences, we 
act immorally, if we disregard the result of experience, 
and we act likewise immorally if we neglect making 
ourselves acquainted, to the best of our powers, with 
this result of experience. As all politics are in a great 
measure dependent upon experience, and consist, both 
of the abstraction of general ideas from numerous indi- 
vidual cases, and the application of abstract ideas to 
ever-changing cases of practical life, it is clear that 
judicious application of well-understood and honestly 
consulted experience forms a most important part in all 
ethical relations applied to politics. Some acts are 
strictly moral or immoral, others belong to the sphere of 
wisdom and foresight (aocpia and ivlafieia). The line 
between the two, in many cases, can hardly be strictly 



sec. xxvi.] Ethical Experience. 59 

drawn, or, if it could, it would be of no use, as the one 
is as important as the other (1). 

2. Experience is requisite with regard to the habit, 
practice, skill, exercise and application, which we have 
to acquire in applying the science of morals. It is in 
ethics as in the science of medicine ; the science gives 
to the physician the general rules ; but to combine them, 
and that with rapidity, for a given case, which consists 
of a number of simple cases, singly treated of by the 
science, and each modified by the other, practice alone 
can teach. Wherever a science is to be applied, the 
art is requisite in addition to the science ; and who is 
there, that has lived sufficiently long to gather experi- 
ence, and does not acknowledge that an ethical skill, or 
art, is requisite in life ? Who would deny that moral 
practice is indispensable for the numberless cases of du- 
ties conflicting with each other? The art of fencing 
teaches us the exact position of the hand, the single and 
well-defined thrusts, and how to direct them to one 
small particular spot. No one, who does not learn these 
elements of the arts well, can ever hope to become a 
skilful swordsman ; yet the art cannot teach all possible 
combinations, or substitute any rule for the quick dis- 
cernment and rapid judgment which, in the twinkling of 
an eye, knows how, almost instinctively, to apply the ele- 
mentary rules, which have become like a second nature 
to the hand, or finds with rapidity resources in the pow- 
ers of combination well-trained for this particular art. 
So can no system of morals dictate what is to be done 
in each case. No one will expect that a book can or 
ought to do that for which, indeed, we are placed in 
this world, — the acting as moral beings. 



60 Ethics in General. [book i. 

Knowledge of morals alone, without practical skill, 
will lead to moral pedantry, an adherence to single 
truths at the expense of others — an error, the more to 
be shunned, as those who commit it, and suffer in con- 
sequence of it, are apt to consider themselves as mar- 
tyrs of morality or truth. This is especially the case in 
politics, in which it is so easy to single out one truth, 
one maxim, one principle, and to follow it up uncon- 
cerned about other equally important ones. It is gen- 
erally the choice of weaker and less comprehensive 
minds, and may lead them to a variety of injurious acts 
and crimes, though under plausible forms. History is 
full of these examples. Generally the most essential 
points which opposed parties claim, are true enough in 
themselves. But it is not sufficient that we acknow- 
ledge a truth; we have conscientiously. to endeavor to 
know the truth. Skill, without a knowledge of morals, 
degenerates into mere expediency, an equally great and 
dangerous defect in morals. 

(1) Be ye therefore wise as serpents, and harmless as doves. 
Matt. x. 16. Life is short, but art is long. Hippocrates. 

XXVII. Having acknowledged the first principle in 
ethics, that man has an inalienably moral character, and 
cannot by his own consent or the force of others become 
a non-moral being, various systems of ethics may be 
established. Not that what is once proved to be im- 
moral by one system, can be shown to be moral by 
another, but we may build up different systems accord- 
ing to the different ways which we may pursue in arriv- 
ing at settled ideas and defined notions with regard to 
morals, or according to the main subjects to which we 
apply ethics. 



sec. xxvn.] Various Ethics. 61 

We ha,ve already seen, from the etymology of the 
word ethics, what way the Greek nation has pursued 
in arriving at clearer ideas in ethics, and finally combin- 
ing them into one system. Common sense, common 
justice, common interest, soon leads men to certain cus- 
toms, to observe certain rules, without which, intercourse 
and mutual understanding would be impossible. These 
customs in real life formed a subject for reflecting minds, 
to find out that which is stable in them, and why it is 
stable, as contradistinguished from what is variable, ac- 
cidental, unessential. " Even from ancient times, men 
have found out what is proper ; from which we ought 
to learn. And one of these things is, that every one 
contemplate what is his." Herodotus, i. 8 (1). This 
has been the course with all nations. Common sense 
necessarily precedes the science. See a very true pas- 
sage on the meaning of words, which common sense 
gives them, and which science at a later period strives 
to ascertain and express in Mr. Guizot's General His- 
tory of European Civilisation, Lecture I. 

As ethics first thus gather what by common sense 
has been established among men, so may ethical sys- 
tems be raised upon the moral precepts deposited in 
some other way, for instance in religious or civil codes. 
Thus we have christian ethics, i. e. a system of morals 
founded upon the moral precepts contained in the bible ; 
we have even evangelical christian ethics, which means 
a system of morals founded upon the bible, while this 
code is taken and understood in the way peculiar to 
protestants. (2) In a similar manner we have to un- 
derstand the expressions Mahometan, Homeric, Hindoo 
ethics. 



62 Ethics in General [book i. 

Ethics are general ; but by applying them to some 
prominent situations or important characteristics of man, 
e. g. his social character, we obtain special branches or 
systems of ethics. 

(1) Tliklat, t& xctldi. d.vd-Q&7ioiot, i^ETugrjiat ix twv (ioo>&6.veiv del. 
*Ev toIuiv bv rods tail axonieiv zivb. iu eojvrov. 

(2) For instance, a work by Professor Schwarz, at Heidelberg, 
entitled, Ethics of Evangelic Christianity. 



(63) 



CHAPTER IV. 

Man, a Being having his own End and Purpose, or an Ens autoteles. — 
Natural Law. — Its only Axiom. — Its Object. — Difference of Natural 
Law and Ethics. — Science of Politics. — Disastrous Consequences of 
confounding Natural Law and Politics proper. — Good Faith necessary 
wherever Man acts. — Political Ethics. — Its relation to the other Sci- 
ences which treat of Man. 

XXVIII. We have seen, that every man, as man, 
has his own ethic worth and value ; he is in this respect 
not only his own object, but in consequence of his rea- 
son and free will he can and ought to make himself the 
conscious object of his own activity ; in other words, he 
shall consciously work out his own perfection ; that is, 
the development of his own humanity. For this reason 
man has been called by the old philosophers ens auto- 
teles (ens, being, autoteles from awog, self, and Tcloc, 
end) a being that is consciously its own end and object, 
to distinguish him from other animals. This, as is evi- 
dent, is again indispensably connected with man's indi- 
viduality. Ethics having established these points, it is 
the object of another science, natural law, or as others 
have called it of late, e. g. Mr. Rotteck of Freiburg, 
rational law, to show the rights which man has accord- 
ing to his inherent, inalienable ethical nature. 

XXIX. Every science, even mathematics, has to 
start from some axioms, that is, from truths which must 
be either supposed to have been proved by other sci- 



64 Political Ethics. [book i„ 

ences, or are self-evident in their nature. The very 
meaning of proof involves its starting from and relying 
on previously acknowledged truths. For every syllo- 
gism we want first two terms, to make our conclusion ; 
the axiom therefore is a truth, the convincing and bind- 
ing power of which we cannot help acknowledging 
without the logical process of deriving the conclusion 
from the term and middle term. 

It appears to me, that the only axiom necessary to 
establish the science of natural law is this : " I exist as 
a human being, therefore I have a right to exist as a 
human being." This once acknowledged, the rights of 
men in their various relations as individuals, husbands, 
or wives, fathers or mothers, as citizens individually and 
collectively in the state to other independent states and 
to the collective citizens within the state, may consist- 
ently and justly be established. Though some ancient 
and modern w T riters have maintained that no right ex- 
ists antecedent to the magistracy deriving the right of 
this from some extra-political, and in some cases even 
from some extra-human source, it is nevertheless true, 
that if we do not deny our own existence and the ex- 
istence of truth, the reality and truth of natural law can 
be scientifically and irresistibly established with as much 
certainty as that of other sciences. Spinoza (Epistol. 
74), who, it will be admitted on all hands, might be 
charged with anything rather than too great a readi- 
ness to admit unwarranted truths justly remarks : — 
" Quomodo autem id sciam si roges respondebo, eodem 
modo, ac tu scis, tres angulos trianguli a^quales esse 
duobus rectis, et hoc suflicere negabit nemo, cui sanum 
est cerebrum, nee spiritus immundos somniat, qui nobis 
ideas falsas inspirant, veris similes." 



sec. xxx.] Natural Law. 65 

Natural Law then inquires into the rights of man to 
be derived from his nature, both physical and moral, for 
the latter is closely connected with the former ; it in- 
quires into quid sit justum aut injustum, not into quid sit 
juris, (what is law or lawful). The word nature is a 
term used in so many various significations, that it has 
led to great confusion of ideas in several branches ; 
and it is not an uncommon mistake to believe that natural 
law is that law which existed in the erroneously sup- 
posed state of nature, on which, as has been indicated 
already, I shall have to dwell in the next book. The 
law of nature, or natural law, on the contrary is the law, 
the body of rights, which we deduce from the essential 
nature of man. It is, therefore, equally erroneous to 
contradistinguish or oppose natural law to revealed law, 
for the latter can only be founded upon the former, 
since by the nature of man we understand that imprint 
and essential mode of existence which he received from 
the hands of his creator. They cannot conflict. 

Nor are natural law and moral law or ethics the same. 
The difference is material. Ethics treat, among other 
subjects, of the duties of man, and secondarily of his 
rights derivable from his duties; natural law, on the 
other hand, treats, as the fundamental and primary sub- 
ject, of man's rights, and secondarily of his obligations 
flowing from the fact of each man's being possessed of 
the same rights. This distinction, though essential, has 
been, and to this day is frequently overlooked. An 
equally good name with that of natural law, might be 
abstract law or pure law, as we have pure mathematics. 

XXX. Natural Law having ascertained and estab- 
lished that which is right from the nature of man, it is 

VOL. I. 9 



66 Political Ethics. [book i. 

the subject of another science to ascertain the best 
means of securing it, both according to the result and 
conclusion of experience, and the demands of exist- 
ing circumstances. I would call this branch politics 
proper. An instance or two will illustrate the sub- 
ject : If natural law shows that from the fact of every 
man's being a moral being, who has his own end and 
worth, and that, consequently, he cannot become a non- 
moral being under whatsoever circumstances, or lose 
his individuality, the state must offer protection to every 
one, or that it would cease to be a state so far as he is 
concerned who is denied to have a right to derive any 
advantage from it ; or that all men are equal in this re- 
spect, that each one has his own ethic worth, and that 
this equality forms the only true foundation for justice ; it 
would, on the other hand, be a question of politics pro- 
per to ascertain how the many ends of true justice are 
to be obtained. If natural law establishes the general 
right to property, namely, that it is founded in the un- 
alterable and indispensable nature of man that exclusive 
possession of things belonging to the material world 
should be vested in individuals or individual societies ; 
it is for politics proper to ascertain whether, under cer- 
tain given circumstances, this general right of property 
is best secured by representative governments, by the 
trial by jury, by unlimited possession, or by reverti- 
ble titles, as was the case in the Mosaic law ; whether 
the general principle demands, under the given circum- 
stances, that the accumulation of property as well as 
division should be unlimited, or whether it is wise to 
prevent division below a certain standard, as is the case 
in Sweden, and some other countries, or prevent ac- 
cumulation beyond a certain limit as Solon prescribed. 



sec. xxx.] Natural Law. 67 

The whole great question of constitutions, with respect 
to everything that is not strictly a principle of natural 
law, e. g. protection of personal liberty, of freedom from 
molestation as long as no wrong is done, of a degree 
of protection extended even to the evil-doer and while 
we bring him to punishment, belongs to the present 
branch. Shall we have two chambers or one, or three 
separate estates, or four ? How long shall the mem- 
bership of the upper house continue ? for six years, as 
in the United States, for ten, or for life, as in France ? 
Who shall bestow it ? Once bestowed, shall it be heredi- 
tary, as in England, or shall the house consist of some 
hereditary peers, and others being members for life, as 
in Holland, Bavaria ? Shall prelates belong to it ? Does 
not the crown increase its influence if it has the right to 
make peers for life only, because the opportunity of con- 
ferring the peerage returns more frequently, and the 
whole body feels more dependent upon the crown? 
Does the increased independence of a hereditary peerage 
upon the crown promise on the whole more advantage 
to the people by uniting with them against encroach- 
ments of the crown, or disadvantage by continued 
opposition to cherished measures of the people ? Is 
it advisable to have female monarchs, where mon- 
archy is necessary ? Are they or are they not in 
their nature, belonging to the weaker sex, which is 
universally excluded from public business, peculiarly 
jealous of their rights, suspicious of opposition, and 
high-toned as to their prerogatives ; and if so, are the 
advantages to be derived from an order of succession 
which includes females greater than the disadvantages ? 
Which mode of voting promises the greatest advan- 
tage, that by ballot or by open votes ? By which 



68 Political Ethics, [book i. 

mode is, after all, greater independence and a less de- 
gree of intrigue obtained ? Is an election of electors 
best, or a direct election ? Shall judges be appointed 
for good behavior, or for a limited time ? What shall 
form the basis of representation, property, number, edu- 
cation, or a combination of them ? When shall a man 
be of age? Is it good that the executive be depend- 
ent upon the people for supplies ? Ought the crown to 
have a distinct crown treasure ? On which side are the 
greatest advantages, where the executive ministers are 
members of one of the houses, and if so, where they 
have a vote or not, or where they are excluded, as in the 
United States ? How is the appointing power of the 
executive to be limited ? How, altogether, is the great 
problem of giving sufficient and yet not too much power 
to the executive, to be solved ? All these questions can- 
not be solved on absolute grounds ; it is experience 
alone, soundly viewed and impartially applied to existing 
circumstances as well as the principles ascertained by 
natural law, which can guide us, respecting these sub- 
jects, many of which are, nevertheless, of vital interest. 

The confusion of natural law and politics proper has 
produced evil, and not unfrequently disastrous conse- 
quences. On the one hand, men have seen that, with- 
out establishing firm and absolute principles, all would 
be confusion and insecurity. On the other hand, they 
have been so far misled by principles drawn from natu- 
ral law, as to judge every political question by theory 
alone, disavowing experience, expedience, and a due 
regard to the elements which were given wherewith to 
work. The impossibility of proceeding in this way, 
never fails soon to be felt, and the very disowners of 
expediency or the necessity of making measures practi- 



sec. xxxi.] Political Ethics. 69 

cal, have committed the most tyrannical outrages, not 
unfrequently founded alone, and acknowledgedly so, on 
absolute expediency as preparatory for that perfect state 
to be founded upon absolute theory. Such men we 
find in the Jacobins in France, whose absolute theory 
was what they called philosophy ; and in the early 
Scottish presbyterians, whose absolute theory was their 
notion of divine government (1). Again, men felt that 
the abstract principles of natural law were insufficient to 
guide them in many practical cases, and they fell into 
the error of rejecting it altogether, relying only on 
power as the foundation of all right, on mere expediency 
as the sole guide of political action. 

Analogous to the term abstract law for natural law, 
we might call this branch applied law, which would in- 
clude both political, civil and penal law, in as far as it 
remains general. The existing law is called positive. 

(1) See Brodie's excellent History of the British Empire, e. g. 
in vol. I. the discussions between James I. and the Scottish pres- 
bytery. 

XXXI. Wherever the application of a principle or rule 
is required, whenever an abstract principle passes over 
into practical life, conscientious action is required, or it 
will fail to obtain its object. No prescription or form of 
words, no law or institution can serve as a substitute 
for this essential element of human action. It is there- 
fore necessary to ascertain by what moral principles we 
ought to be guided in certain specific political cases, 
and what it is that experience points out as the wisest 
course for a conscientious citizen, under the law and in 
relations established by the two former sciences. And 
this branch in particular I call political ethics. 



70 Political Ethics. [book i. 

If, for instance, politics proper establish, that, for 
certain purposes and under certain circumstances, it is 
necessary that the votes of the members of a state 
ought to be taken, but that the law ought to leave it to 
the option of each citizen whether he will vote or not ; it 
belongs to the province of political ethics, to ascertain 
whether every citizen is morally bound to vote under 
all circumstances, and if not, to point out the cases 
when he ought to vote, not according to the law, but 
in conformity with his moral obligations as a good citi- 
zen; when he need not, and finally, when he ought 
not to vote. 

If the former branch establish that general rules of 
action or laws must be established wherever a society 
exists, and that these laws ought, of course, to be 
obeyed, for, without it, they would not be general 
rules ; and if, at the same time, that branch has to 
define the subjects on which society may or ought to 
legislate, and those on which no general rule ought to 
be given ; it belongs to the department of the branch 
with which we shall occupy ourselves, to ascertain the 
cases when, or laws which we may disobey and those 
we are morally bound to disobey. If we find that in 
free countries an opposition to the administration is not 
only advisable, but highly desirable, political ethics must 
show how far a conscientious citizen may go in his oppo- 
sition. 

That in many cases it will be difficult to ascertain 
with precision to which of the two branches a subject 
belongs, is clear; as there is no absolute line of de- 
marcation for any science, except that of mathematics, 
which circumstance gives so great advantages to the 
science, and again confines it within so narrow limits. 



sec. xxxii.] Political Ethics. 71 

Nor has this uncertainty any injurious effect ; for if the 
subject be but fully, philosophically, and conscientiously 
treated, it does not matter so much where it is done. 

What has been said of the necessary combination of 
prudence with what is strictly ethical on its own ground, 
in general ethics, finds most ample application in this 
particular branch of applied ethics ; in no branch of 
morals, indeed, so much so as in this. With Themis - 
tocles, every citizen ought to advise on what is prudent, 
with Aristides, on what is just and good. 

XXXII. Political ethics would apply to municipal 
political relations as well as to international relations. 
But international law, as Mr. Bentham has more signi- 
ficantly called what before him was styled the law of 
nations, forms so distinct a branch of natural or positive 
law, according to the point of view which may be taken, 
that I hope the critic will excuse me, if, at least for the 
present work, especially calculated for rising genera- 
tions, I drop the subject of ethics as applied to interna- 
tional intercourse, and occupy myself solely with ethics 
as applied to municipal political relations. Yet I would 
guard myself against a suspicion that I undervalue the 
moral element in the intercourse between independent 
states. No one can have studied history without 
coming to the conclusion that morality is of urgent 
expediency in the intercourse of nations, even were we 
not bound on higher grounds to acknowledge our ethic 
obligations, which never leave us, even in these inter- 
national relations. The few truly magnanimous interna- 
tional acts, which history records, have, I believe, failed 
in no instance to produce the most beneficial results, 
while the age of diplomatic cheat and trickery brought 



72 Political Ethics. [book l 

misery over all Europe. What had Louis XIV. gained 
towards the end of his days, by an unusually long and 
active life of political fraud, faithlessness, and immorality, 
which totally disregarded justice or the sacredness of 
engagements ? 

XXXIII. If we wish to assign the proper rank to 
what I mean by political ethics, among all the sci- 
ences, whose subject is man, it would be this: man 
can be considered as he is, or ought to be, and as he 
has been ; again, individually or socially ; again, physi- 
cally, morally, or intellectually. Individually, physically 
as he is, man forms the subject of anatomy, compara- 
tive anatomy, physiology, &c. or medicine. Socially, 
physically and as he is, by political economy. Individ- 
ually, morally, as he is, and ought to be, by ethics, the 
science of education, &,c. Individually, intellectually 
as he is, by philosophy of the mind, or, according to 
English terminology, by metaphysics. Socially, accord- 
ing to the relations of right, as it ought to be, by na- 
tural law, politics proper, &,c. ; as it is, by diplomacy, 
positive law, &c. Socially and morally, by political 
ethics. Socially and intellectually, by the science of 
national education, or, in general, national civilisation. 
The two relations of time as it is, and as it has 
been, together with the ethic relation, as it ought to 
be, give, applied to law for instance, the positive or 
existing law, history of law ; and natural law and the- 
oretic politics. 

All right, as we have seen, starts from the moral 
character of man, and ethics, again, applied to man's 
political relations, have to shed light upon the many 
relations within the confines of the law, upon those 



sec. xxxm.] Political Ethics. 73 

actions, which the law leaves wisely to the judgment 
of the citizen, and which yet are of great importance 
to the whole well-being of the commonwealth. I re- 
peat, it is this branch of applied ethics, which I call 
political ethics. 



VOL. I. 10 



(74) 



CHAPTER V. 

Do Political Ethics deserve to be treated separately? — Can Ethics be 
applied to Politics ? — The People at large ought to know their Political 
Duties. — Political Ethics are not for the Statesman alone. — Demoralis- 
ing effect of a Politically Debased Society upon the Individual. — Politi- 
cal Ethics especially important in Free Countries. — Attempts of Gov- 
ernments and Nations to justify Public Crimes, which proves that Men 
agree, public Acts ought to be founded on Ethic Grounds. — Ethics 
cannot be applied to Politics precisely as to Private Relations. — Mere 
Expediency ; mere Theory. 

XXXIV. If it has thus been shown what place in 
the chain of sciences political ethics occupy, and what 
forms the subject-matter of this division of ethics, it 
remains for us to answer two questions : 

1. Though they may be important, are they suffi- 
ciently so, to be treated separately ; for in a similar way 
we might separately discuss family ethics, or forensic 
ethics, meaning by the latter a system of duties con- 
cerning the citizen in a forensic character, as judge r 
juryman, lawyer, even as witness, informer, or prose- 
cutor ? 

2. Are politics really a subject to which ethics can 
be applied ? For it cannot be denied that the actions 
of many persons indicate that, according to their opinion, 
little connexion exists between the one and the other, 
or that, according to their desire, little ought to exist. 

XXXV. As to the first, whether political ethics form 
a branch of sufficient importance to be treated sepa- 
rately, we must refer to the next book, by which it will 



sec. xxxv.] Political Ethics. 75 

be seen that man, or at any rate the least elevated races 
of his species, cannot exist without the institution called 
the state, because he is essentially a social being, ac- 
cording to his animal propensities and organisation as 
well as his intellectual faculties and moral characteris- 
tics. Yet a man may be a dutiful son, a loving brother, 
a kind husband, a judicious father, a faithful friend, a 
charitable neighbor, industrious in his calling, a sincere 
well-wisher to his species, and still he may omit a strict 
performance of his duties as a citizen. He may even 
boast of his political apathy. So that it appears neces- 
sary that we should know all our civil obligations. 
Whenever nations have risen to a high degree of civil- 
isation, they have reflected on the art of government, 
the principles of legislation, and the origin and object of 
the state; wherever man has omitted to do so, he has 
relapsed into barbarity, or never elevated himself above 
it. Man cannot be, what he ought to be, without the 
state, and nations rise by wise laws; never do they 
maintain themselves, after having risen in an elevated 
position, except by wise laws and sound institutions, 
supported and carried out by active patriotism. Europe 
on the one side, Asia on the other, form the mighty 
commentaries which history has written and continues 
to take down upon these truths. There is no nobler 
sight to contemplate, no object more invigorating, to dwell 
upon, than a man of manly energy and wisdom welded 
and wedded, in vivid patriotism to his country, living and/ 
laboring faithfully, in glory or difficulty, honored or mis- 
judged, wisely, firmly, steadily and devotedly for his/ 
people. ( No one contemplates a Turgot, de Witte, sir 
John Elliot, Washington, Epaminondas, Chatham, with- 
out feeling the better, the more reassured for it 



76 Political Ethics ; [book i. 

XXXVI. Many subjects, however, though useful or 
necessary to some, are not so to every one. Political 
ethics may form a very proper branch for a leading 
statesman, or the citizen who makes a profession of 
politics, yet ought they to be well understood by every 
body ? Is it, in particular, necessary to instruct the 
young in them ? I believe they are most emphatically 
so. It is every man's business to know his duty, and 
his duties as citizen are among the most sacred and 
important, especially so in countries which enjoy civil 
liberty, and have what is commonly, though inaptly 
called a free government. The success of the whole, 
depends upon the whole ; and there is no subject con- 
nected with the state, which does not vitally affect the 
interests of every one. Laws and institutions are 
nothing more than dead forms of words, unless they 
operate. /Constitutions do not create liberty j political 
welfare cannot be decreed or effected by an edict or 
statute. Liberty must grow and live, live in the heart 
of every one, not only as an ardent desire, or an inde- 
finite though exciting notion, but as a knowledge of 
our political obligations and a profound reverence for 
political morality. No William of Orange can free his 
countrymen from the Spaniards, no Thrasybulus can 
rescue his city, no Solon can make her prosper, though 
the laws he gives were inspired, if they find not sup- 
port in every bosom ; if there be not the chord to vibrate 
in unison with them ; if the mass of citizens are not 
willing to follow, because the leader acts right and 
wisely. The wisest statesman is in this respect but 
like the poet. He cannot delight, elevate or inspire, 
unless the elements to act upon are in the hearts of 
the hearers. He cannot make new truths, and if he 



sec. xxxvii.] Their General Importance. 77 

could, how could he gain entrance for them into the 
hearts of the people, who were wanting in the very 
sense to perceive them ? But he can boldly and strik- 
ingly pronounce what until then was but dimly felt in 
the soul of the hearer, or latent though unperceived in 
his heart. So can the statesman clearly pronounce and 
boldly act out or gradually cultivate what was but 
vaguely felt by the masses, he can concentrate what 
was scattered, awaken what was dormant, impel, regu- 
late, restrain, but he cannot create his elements. Har- 
rison, in his Political Aphorisms, says, "the people 
cannot see, but they can feel." If so. it is the duty of 
the statesman to see, and his foresight cannot be ac- 
knowledged unless the people feel right, and are well 
instructed. The freer a country, that is, the more 
action is guaranteed to every individual, the more 
necessary becomes a well-founded and general know- 
ledge of political duty. Without it, that free action 
will serve but for evil ends. 

XXXVII. No doubt can be entertained, but that 
there are at all times, among millions, some individuals 
endowed with great gifts, with talents equal to those of 
the eminent and successful men of happier periods, but 
they cannot make and construct a state, and breathe 
into it the inspiration of life, nor can they guide it by 
the noblest principles, if the people do not correspond 
to their exertions, or if the times do not call upon them. 
And what are the times but the acts of the people? 
Was there not in all Italy one great soul left at the 
times of the emperors, not one who at the fairer periods 
of the republic would have won the civic crown ? 

The state has so often been compared to a vessel, 



78 Political Ethics ; [book i. 

that the comparison has become trite ; but it would not 
be trite if it were not true. Well, then, it is not the 
large main sheet which is most frequently used by the 
mariner ; and if it is used, it does not do the greatest 
service. It is the fore -sail, the smaller top -sails, the 
gibs, spankers and try-sails that do nearly all the work. 
It is they that must be in good order, else the vessel 
cannot steer course or swiftly. If they are tattered or 
poor, if their running-rigging cannot stand the sudden 
squalls, what matters it whether the compass point 
correctly or be foul, and whether the best man be at the 
wheel or a sluggard ? The vessel will make lee-way 
and drift on sunken rocks despite of the steadiest hand 
at the helm. Let the shrouds and stays be sound, and 
though the yards with their sails may be gone, you may 
manage to run up jury -yards, and yet save the ship ; 
let the timber be sound and seasoned live oak, let the 
crew be sober and every one know his duty, and she 
may live yet, though reduced to a laboring wreck and 
shipping heavy seas, which every moment threaten to 
whelm and sink her. 

XXXVIII. The state is so intimately connected with 
nearly everything which concerns man, all our interests 
are so closely interwoven with its weal, that it cannot 
prosper or remain uninjurious, in turn, without a faithful 
and correct discharge of duties on the part of every 
citizen. The state — the greatest institution on earth — 
elevates everything that appertains to it, every duty, 
interest or measure, into great importance, for the sim- 
ple reason that it affects all, and what with its direct 
and indirect operation, it very materially influences the 
moral well-being of every individual. Cicero justly 



sec. xxxvm.] Their General Importance. 79 

acknowledges the sacredness of this institution in the 
sight of God, when he said : Illi principi et prsepotenti 
Deo, qui omnem hunc mundum reget, nil eorum, quae 
quidem fiunt in terris acceptius, quarn concilia et ccetus 
hominum jure societati, qui civitates appellantur. Somn. 
Scip. c. 3. The state (with its laws and government) 
affects materially the whole man living within it. Good 
laws elevate man ; bad laws, if persisted in for a series 
of years, will degrade any society. Unfortunately, his- 
tory and the existing state of many countries prove 
this truth so abundantly that it is useless to instance 
any facts. Mr. O'ConnelTs speech, House of Commons, 
April 28, 1837, on the Irish Poor Law Bill, respecting 
crime and poverty in his native country, as the effect of 
bad legislation, is worthy of all attention. 

It is one of the greatest blessings to live under wise 
laws administered by an upright government, and 
obeyed and carried out by good and stanch citizens; 
it is most grateful and animating to a generous heart, 
and a mind which cheerfully assists in the promotion of 
the general good, or salutary institutions. It greatly 
contributes to our self-esteem, if we live in a community 
which we respect, among fellow-men we gladly ac- 
knowledge as fellow-citizens. Many of the noblest 
actions which now adorn the pages of history, have 
originated from this source of inspiration. On the 
contrary, we feel ourselves humbled and dispirited, we 
find our own views contracted, and our moral vigor 
relaxed ; we feel deprived of that buoyancy without 
which no manly and resolute self-possession can exist ; 
it wears off the edge of moral sensitiveness, when we 
see ourselves surrounded by men with loose political 
principles, by a society destitute of active public opinion, 



80 Political Ethics. [book i. 

which neither cheers the honest nor frowns down immo- 
ral boldness ; when we hear of bribed judges, perjured 
officers, suborned witnesses, of favor instead of law, 
and can perceive only listless spectators, without any 
opinion of their own, any spirit of veracity and trust- 
worthiness or mutual dependence. Moral susceptibility 
gradually vanishes ; the feeling becomes daily more 
blunted ; for everything in society has a reciprocal 
effect. What is effect to-day, becomes cause to-mor- 
row. Hence the rapid downfall of empires, when once 
corruption and depravity begin ; evil begets evil ; the 
succeeding generation is worse than the preceding one, 
until final dissolution follows, or a combination of happy 
and extraneous circumstances produces a sudden 
change, which, in the nature of things, cannot be 
frequently the case. Read the history of Rome for 
proofs of this. We see, therefore, the great import- 
ance of imprinting deeply on our mind sound princi- 
ples of public morality ; and when can this be done 
to greater advantage and with more certain conse- 
quences than in our youth? If Erasmus says, "At 
bonus princeps esse non potest, qui non idem sit vir 
bonus," his remark has equal force and truth if you 
substitute civis for princeps. (See his Instit. Principis 
Christiani, page 583, B. vol. IV. of his Opera Omnia, 
Ley den, 1703). 

If this knowledge has been of much importance, 
wherever nations have attained to anything like wise 
and lasting institutions, it is peculiarly so in modern 
times. For one of the main and characteristic differ- 
ences between ancient states — I mean the Greek and 
Roman — and modern ones, is this, that in antiquity the 
state nearly absorbed the rights and interests of the 



sec. xxxix.] Ethics and Politics. 81 

individual, and public attention was directed far more 
toward the preservation of the whole than the protec- 
tion of the individual. Politics, however, established 
according to the point of view which is taken in modern 
times, place the protection of the individual, the indi- 
vidual rights of man, in the most prominent position 
among all the objects of the state. This point will be 
more fully discussed in the next book. What has been 
said, however, suffices for the present, to indicate the 
peculiar importance, which in modern times the indi- 
vidual, as such, occupies in the state, and the conse- 
quent necessity of a sound knowledge of everything 
that concerns him with regard to the relation he bears 
to the state. 

XXXIX. As to the second question: Are politics 
susceptible of being treated in an ethic point of view 1 
the answer is simply this: Either the state, and all 
the institutions and laws which have emanated from it, 
exist for the satisfaction of an ambitious and interested 
or privileged few, or the state is an institution for a 
distinct moral end, or politics are the effect of mere 
chance. One of the three must necessarily be the 
case. The first is so repugnant to every man's feeling 
as well as to common sense, that none have ever dared 
publicly to acknowledge it, however they may have 
been inclined to act on some such view. If man is a 
rational being, the state must have a rational end, i. e. 
it must be founded in reason, which would not be the 
case, were it a mere contrivance for the benefit, or 
rather the satisfaction of the desires and appetites of a 
few. For science would then have to single out the 
few, and establish scientifically their claims. None can 

VOL. I. 11 



82 Political Ethics. [book i. 

possibly be above reason. " Popes and kings, there- 
fore, should seek a reason above their own wills." 
(Wiclif, in one of his sermons. See Webb le Bas, 
Life of Wiclif, New York, 1832, page 193). And not 
only popes and kings should do so, but every man, the 
politician, leader, orator, general, president, or whatever 
his station, employment, or aim may be. " Res publica 
est res populi," (Cicero, de Rep. I. 25), and Augustin 
de Civitate Dei V. 18, enlarges it: "Res publica, id 
est res populi, res patriae, res communis." Whatever 
is founded in reason cannot have an immoral end ; it 
would be a contradiction in itself. A very great states- 
man, Oxenstierna, wrote, indeed, to his son : " nescis, 
mi fili, quam parva cum sapientia regitur mundus," 
when he encouraged his hesitating son, to take charge 
of an important embassy, but though this is unfortu- 
nately often the case, it is not necessary, on this ac- 
count, that it should be so, either in the intercourse 
between nations or in municipal politics. Common 
sense has long decided the matter ; for when has there, 
in modern times, a declaration of war been issued, 
which did not endeavor, at least apparently, to seek 
for a just cause of war — one founded in reason ? 
Even Attila called himself the scourge of God; he 
wished for a plausible motive for his vast and destruc- 
tive expeditions. On the other hand, we hear nowhere 
more of virtue, and all the moral feelings of man more 
frequently appealed to, than in politics, even in those 
times, when political notions are in the greatest con- 
fusion, nay then, perhaps, most vehemently. Marat and 
Robespierre, Reubel and St. Just, had the name of 
virtue always on their lips. Does this not show abun- 
dantly that all men are well agreed, that the state, and 



sec. xl.] Public Acts must be Moral 83 

consequently all politics do not admit of immorality? 
Does any man ever appeal to our generosity and virtue 
when an entirely non-ethical act is to be performed, 
for instance, the building of a railroad 1 Exceptions, 
indeed, there exist, but they remain exceptions, and. 
are rare. Thus, a most distinguished member of the 
French chamber of deputies, pronounced, in the year 
1831, from the tribune, that France ought to make 
war ; for a new dynasty ought to surround itself with 
glory — which, to be sure, supposed that the war must 
needs end victoriously for France. Charles Gustavus 
of Sweden said, when he treacherously broke the 
peace of Roskild (concluded in 1658), because success 
had incited his thirst for farther aggrandisement ; that 
after the conquest he would easily prove his right, and ( 
that there is always a just cause for war, as soon as 
there can be found a realm or prince who is incapable 
of resisting (Raumer, History of Europe since the 15th 
Century, vol. V. p. 387). 

XL. Still, it must be remembered, these are but 
exceptions. Look at the hypocrisy studiously carried 
through so long a life as that of Louis XI. of France. 
During all the protracted iniquitous transactions of the 
Castilian government against the Moriscos, the former 
will always be found desirous of glossing over its own 
actions with the appearance of justice. While Lerma 
persecuted' these unhappy beings with studied cruelty in 
1609, the king spoke of mild and tender means (suaves 
y blandos; in a letter of the king to the ' Sworn' of Valen- 
cia, dated September 11, 1609, to be found in Raumer's 
Letters, &c. vol. I. p. 214) (1). When one of the 
blackest crimes that soil the pages of history, the mas- 



84 Political Ethics, [book i. 

sacre of St. Bartholomew, had been perpetrated with 
unexampled treachery, cruelty and disgusting vice and 
villany, by Catharine of Medici and Charles IX., on 
August 24, 1572, the king, after a long and coldblooded 
consultation between his wicked mother and Anjou, as 
to the invention of the best means of justifying them- 
selves (Tavannes xxvii. 275), proceeded on August 26, 
to parliament, and there added to this stupendous wrong 
the solemn lie, after having heard high -mass, that all had 
been done to save themselves from a vast, yet timely dis- 
covered conspiracy of the Huguenots. Their bodies were 
weltering in blood and could not gainsay the falsehood, 
but on August 24, the day of the carnage itself, the king 
and queen sent a declaration into all the provinces, that 
the whole had been done against their will by the Guises. 
(Thuanus, L. ii. 9, 10). Nay, though Philip II. of Spain 
celebrated this event by the performance of a drama, 
representing the Triumph of the Church Militant, and 
pope Gregory XIII. ordered a solemn Te Deum to be 
performed in the church of St. Louis, Charles IX. or his 
wily mother, found it necessary to order, even two 
months after the bloody deed, the torturing and execu- 
tion of an old nobleman, Briquemant, and of Cavannes, 
one of the royal councillors, as having been accessories ; 
so that the appearance of truth as to a Huguenot con- 
spiracy might be kept up. (Walsingh. iii. 228 ; L'art de 
verifier les dates ii. 191 ; Serres 451). 

The most striking instance of the pressing neces- 
sity of justifying public acts is perhaps offered by 
Louis XIV. who used to handle fraud like algebraic 
letters. He, who had a clerk of the department of for- 
eign affairs hung, for having betrayed state secrets, and 
at the same moment sent money to the privy secretary 



sec. xl.] Public Acts must he Moral 85 

of the Spanish prime minister to buy his secrets ; he, 
whose minister de Lionne wrote to chevalier de Gre- 
monville, French ambassador at Vienna, "The king 
finds that you are the most impudent minister on earth. 
But in this piece his majesty bestows upon you the 
highest possible praise you can wish for" (2) ; this same 
king, who broke treaties while almost in the act of con- 
cluding them, who never hesitated at cruelty or false- 
hood if expedient, still was obliged to pay his tribute 
in the cloak of hypocrisy, to political morality. 

All the endeavors of this monarch in foreign politics 
were directed to this sole object, to place a branch of 
his house upon the throne of Spain, after the extinction 
of the Austrian- Spanish branch should have taken 
place. Neither time nor money, patience, cunning, 
treachery, deceit and fraud, nor corruption of any kind 
were spared. The road to this great object was opened 
as early as in the treaty of the Pyrinees, for even then 
all possible precautions were resorted to, in order to 
nullify at the proper time all the renunciations which 
Maria Theresa, a Spanish infanta and wife to Louis XIV. 
had been obliged to make with regard to the Spanish 
succession at the time when her marriage contract was 
formed. The French cabinet proceeded systematically 
to collect all sorts of pretences, to use them at the desired 
period (3). Why did not the French cabinet quietly 
wait until the death of the Spanish monarch, and then 
strive to place a French prince on the Spanish throne 
by mere force of arms, without alleging one law- 
ful reason? Because there is that mighty voice in 
every man's bosom which tells him that there is such a 
thing as right and wrong, and that, though it may be in 
our way, though the individual may have made up his 



86 Political Ethics. [book i. 

mind to disregard this difference, he knows the world 
will not, nay more, that by openly proclaiming this dis- 
regard, he would take away the only ground upon 
which a claim could be made ; for a claim presupposes 
a right ; a right presupposes the ethic ground upon 
which it must rest. Animals have no right toward 
each' other, because non-ethic creatures ; but we have 
rights and duties. 

The Indians of South America appeared to the con- 
quering Spaniards to be possessed of but very inferior 
claims when compared with their own. Not even the 
common laws of humanity were considered sacred 
toward the aborigines, and yet did the Spaniard feel 
the necessity of some justification before his own con- 
science; even his cruel conquest he wished to found 
upon some right, some moral basis. From the time of 
Alonzo de Ojeda a manifesto in Spanish was read to 
every newly discovered tribe, in which, at great length, 
the rights of the pope, as vicegerent of God, were ex- 
hibited, how he had presented the Spanish crown with 
all the Americas, and how the Indians, therefore, owed 
allegiance to it, and a refusal of which would be visited 
by extirpation. The manifesto had been drawn up 
with great care by the united effort of divines and 
lawyers (4). 

Frederic the Great found it necessary to justify him- 
self respecting the part he had taken in the unhallowed 
partition of Poland. When provinces or colonies rise 
against their mother countries, they issue justificatory 
manifestos ; the sultan, some years ago, published an 
elaborate justification of the conduct of his government 
toward the Greeks. And it is to be remarked here 
again, that the more civilised the nations, the more they 



sec. lxi.] Ethics and Politics. 87 

acknowledge the necessity of vindicating their acts on 
ethic grounds. The rude alone make their sword the ( 
tongue of the balance of justice, or bow without mur- \ 
mur to the stronger. 

(1) This act of treacherous crime, and, with regard to the phy- 
sical welfare of Spain, of egregious folly, has been represented in 
its true light in Raumer's History of Modern Europe, already 
quoted in the text, where most of the sources of the history of this 
protracted act of cruel perfidy may be found. Mr. Capefigue, a 
French writer, considers, in his work entitled Richelieu, this act 
not so shameful nor so absurd, but his defence is a poor piece of 
special pleading. So was the massacre of St. Bartholomew called, 
in 1824, by the ultra royalist papers, une rigueur salutaire. 

(2) and (3) Mignet, Negociations relatives a. la succession 
d'Espagne sous Louis XIV., precedees d'une introduction et ac- 
compagnees d'un texte historique, 2 vols. 8vo, Paris, 1836. Mr. 
Guizot, while minister, caused the abundant sources of the French 
archives to be used for historic publications. The title of the 
whole work is : Collection de Documens inedits sur PHistoire de 
France, publies par ordre du Roi et par les soins du ministre de 
Instruction publique — of which valuable publication the above 
forms a part. 

(4) The document is to be found in the appendix to Washing- 
ton Irving's Voyages and Discoveries of the Companions of Colum- 
bus. 

XLI. Men have felt at all times that the unchange- 
able principles of morality are not applicable to domestic 
and foreign politics, precisely in the same manner as in 
private transactions or family relations. To demand let- 
ters, not directed to us, in a way that is calculated to de- 
ceive the person who possesses them, in order to induce 
him to give them up, and then to publish these letters, 
would be considered, in ordinary cases, no very honor- 
able act indeed. Yet who is there at present, American 
or Englishman, that would blame Dr. Hugh Williamson 



88 Political Ethics. [book i. 

of Pennsylvania for the manner in which he obtained 
the dangerous and treacherous letters of governor Hutch- 
inson of Massachusetts Bay, from an officer in London, 
who supposed him to be an officer of the British gov- 
ernment himself, judging from his positive demand, 
when the superior clerks were absent from the office ; 
and who blames Dr. Franklin for publishing them? (1) 
Did the Gueux, in 1566, in the Netherlands, act wrong 
in stopping the messenger from the Spanish ambassa- 
dor Alava at Paris, to Margaret, governant of the Low 
Countries, and in searching his despatches, by which 
they at length obtained incontrovertible evidence of 
king Philip's II. sinister and revengeful plans? This 
amounts, however, to nothing more than that circum- 
stances exercise always their influence upon the appli- 
cation of ethical principles. I never heard any one 
blame Columbus for making use of an eclipse, in the 
year 1502, to deceive the natives of Jamaica, in order 
to induce them by fear to continue to supply him and 
his crew with food, when that great man was shame- 
lessly abandoned by the Spaniards in his colonies, who 
ought to have honored him most, wrecked in the saddest 
condition of health and with a mutinous crew (2). 

These instances then prove in no manner an absence 
of the moral element in politics. If such acts were not jus- 
tifiable on other grounds than merely because they w T ere 
political measures, they would not be justifiable at all. 
There was actually a time when, in Italy for instance 
toward the end of the middle ages, ethics were almost 
totally discarded from international intercourse, which 
in consequence became nothing more than the merest 
calculation of expediency. Such contemptible means as 
vanishing ink, were resorted to in diplomatic affairs (3). 



sec. xll] Ethics and Politics. 89 

As to municipal politics, some men have boldly avowed 
that "all means are fair in politics," not in times of 
revolutionary disorder, but of profound peace and social 
prosperity ; not in the ardor of debate, but in print ; not 
at that age of Italian expediency, when the holy host 
would be used to convey poison to the lips of the com- 
municant — but of late, in our times, in our country. 
Yet, in a similar way have men asserted, and in printed 
works too, therefore well weighing what they said, that 
all means, the foulest not excepted, are fair for the pro- 
motion of religion (4). If we may give up ethics in one 
thing, we may do so in all ; the principle is the same ; 
and Charles V, when he refused the offer made by 
the baker of Barbarossa to poison his master, though he 
was an outlawed pirate (5), or Fox, when he informed 
the great enemy of England that offers had been made 
to the British government to assassinate him, acted but 
as poor politicians. Not so, I trust. 

It is one of the chief objects of this work, to show 
how the principles of ethics are applicable to politics. 
If there is, at present, in some countries so great a con- 
fusion of ethico-political ideas, that the observer would 
well nigh loose his hope, let us not forget that nations 
may rise from a state of political torpor or immorality, 
and assume a station worthier of the nature of man. 
Who would deny that England, of to-day, stands, 
as to politics and public political opinion, far above the 
times of Charles II, and the political corruption under 
James II ? Who would deny, that France has politi- 
cally improved, if we compare her as she is, with the 
times of the Regent, and of Louis XV ? Who can deny 
that the probity of the papal church government has 
vastly improved since the times of the reformation, if 

VOL. I. 12 



90 Political Ethics. [book i. 

we compare it to what it was under the popes of the 
fifteenth century ? 

What minister of state would now dare to take a 
pension from a foreign monarch, or what judge a present 
or bribe ? Yet nothing was more common, perhaps, 
all over Europe in the seventeenth century. 

Much, however, seems yet in an unsettled state. 
Very doubtful, and, at times, decidedly immoral princi- 
ples are publicly, sometimes unwittingly, proclaimed. 
Our task is to proceed in this branch, as mankind pro- 
ceeded with regard to ethics in general. Let us gather 
what is acknowledged as stable, let us ascertain why it is 
so, and on these principles rest our further conclusions. 

(1) The manner in which Dr. Franklin obtained these impor- 
tant letters, which caused so much excitement at the time they 
were published, in 1772, and for which he was violently assailed, 
was a secret which he faithfully took with him to the grave. Dr. 
Williamson avowed the fact to James Read, of Philadelphia, who 
communicated it to Dr. Hosack, of New York. See his biogra- 
phical memoir of H. Williamson, in Vol. I. of Hosack's Essays 
on Various Subjects of Medical Science. New York, 1824. The 
great simplicity, boldness, and yet sagacity of the scheme adds 
much to its interest. 

(2) See Washington Irving's Life of Columbus. 

(3) I have not mentioned in this place Macchiavelli, probably 
as some readers might expect ; I take a very different view of this 
great man, which I have given in the article on him in the Ency- 
clopaedia Americana. 

(4) " Let the women, who complain of the vices or ill-humor of 
their husbands, be instructed secretly to withdraw a sum of money, 
that by making an offering thereof to God, they may expiate the 
crimes of their sinful helpmates, and secure a pardon for them." 
Secreta Monita Societatis Jesu ix. 16. 

(5) Charles said, " I conquer my enemies with arms, not with 
fraud and treachery." Sandoval, Historia de la vida y hechos del 
imper. Carlos V, ii. 243. Vera, Epitome de la vida y hechos del 
emper. Carlos V, 71. 



(91) 



CHAPTER VI. 

Does Religion or Common Sense dispense with Ethics in Politics? — 
Hume's View of Common Sense. — What is Common Sense ? — It 
does not dispense either with a proper Knowledge of Politics and 
Ethics, or constant Exertion and much Industry. 

XLII. Political Ethics have not appeared to many 
persons in as important a light as they otherwise would, 
had not false reliance been placed upon religion and 
common sense ; both of which are as important in poli- 
tics as in any other sphere of human action ; but they 
do not dispense with morals in politics any more than 
anywhere else. As to the distinct sphere of religion, 
and the effects of confounding it, from whatever cause 
or motive, with politics or matters of right, and espe- 
cially of taking the bible, a code of religion and morals, 
for a political code, I must refer the reader to the sequel 
of the work. It is a subject which requires the calmest 
investigation. Respecting common sense, as the sole 
guide in politics, the following is the view I take. 

XLIII. Hume, in his Essays, vol. II. p. 246, says: 
" Though an appeal to general opinion may justly, in 
the speculative sciences of metaphysics, natural philo- 
sophy and astronomy, be esteemed unfair and incon- 
clusive ; yet in all questions with regard to morals, as 
well as criticism, there is really no other standard, by 
which any controversy can ever be decided. And 



92 Political Ethics. [book i. 

nothing is a clearer proof, that a theory of this kind is 
erroneous than to find that it leads to paradoxes, which 
are repugnant to the common sentiments of mankind 
and to general practice and opinion." No one will 
deny that this is true in a great degree, yet it requires 
very much to be limited, or we should have in matters 
of taste as well as ethics the most unsettled standard. 
First, as to the words ' mankind ' and ' general prac- 
tice,' they are vague. All mankind cannot be meant, 
for the diversity of opinion as to details is very great, 
both at different ages and at the same time. The 
African slave trade, now declared by all christian na- 
tions a piratical crime — Portugal, the first power who 
introduced it, abolished it last by a decree of December 
10, 1836, and Texas sprung into existence almost with 
a declaration of its iniquity on her lips, which had but 
just pronounced her independence — was once a ' gen- 
eral practice,' and Roscoe, the pride of Liverpool, was 
hooted by that very community on his return from par- 
liament in 1807, for having voted for the abolition of 
that traffic (page 290, vol. II. of Life of William Roscoe, 
Boston, 1833). Is then meant by mankind, our pecu- 
liar race or tribe, or our nation, or our community or 
whatever other representative of mankind be taken? 
If so, we shall find that in many cases what is a 
paradox with one nation is very far from being so 
with another. Respecting paradoxes themselves, we 
have only to remark that every great truth, when first 
promulgated, sounded paradoxical to the multitude. 
When the eastern philosopher first called upon his 
followers to do good even unto enemies and to be like 
the sandal tree which sheds perfume upon the axe that 
fells it, no doubt it appeared very odd, as we have the 



sec. xliii.] Common Sense. 93 

proof that Christ's precept to love our enemies was but 
a paradox according to the 'general practice' and 
opinion of 'mankind.' There was a time when the 
idea that the people are after all the great and true 
fountain of power, or that they should have the right to 
criticise the acts of government, was nothing more than 
an odd paradox. It was decidedly repugnant to the 
general feeling of mankind in antiquity and the middle 
ages that the man ' disgraced by labor ' should in any 
way stand equal to those who did not labor. To gain- 
say it would have appeared as a mere paradox. When 
the French rules of taste prevailed, it was a sheer 
paradox to prize a glowing lyric or pathetic ballad of 
the middle ages more highly than cold and stately 
declamation expressed in formal alexandrines — nay, to 
value Shakspeare higher than Racine or Voltaire. 
There was a time when it was an absolute paradox to 
esteem the grandeur and slender gracefulness of Gothic 
edifices anything more than the architecture of a bar- 
barous age. I do not make use of instances such as 
afforded by witchcraft, or the ideas of free trade, and a 
thousand others, which sufficiently prove that we could 
not easily err more dangerously than by adopting the 
'common sentiments of mankind' as our sole guide, 
unless we have good reason for doing so. The 
instances which have been cited are taken from morals 
and criticism, the spheres for which Hume gives the rules. 
Yet, on the other hand, nothing can be more wayward, 
and even arrogant, than to set up private opinion, 
judgment and feeling, on all occasions, against general 
opinion or what has been sanctioned by successive 
generations. A proper limit is to be observed ; the 
present chapter, as well as that on public opinion and 



94 Political Ethics, [book i. 

the Political Hermeneutics, will, I hope, either show 
them or aid in drawing them with greater distinctness. 

XLIV. For the present I have to do with common 
sense only. What is common sense ? It appears to 
me that the word is used in different meanings, two of 
which appear as the most important. It either expresses 
a peculiar species of judgment, which I shall desig- 
nate more accurately, or that which has been settled as 
right, proper, allowable, by the aggregate judgment of 
a community or successive generations. In the latter 
sense it must be taken when Guizot says, "it is the 
common sense which gives to the words their common 
signification," (he might have said, "it is practical 
life which necessarily forms, shapes, extends and con- 
tracts the meaning of words), "and common sense 
is the genius (spirit) of mankind" (1). In this case 
common sense is not without a close connexion with 
public opinion. 

The word common sense has come down to us from 
the ancient philosophers, and those of the middle ages. 
Intelligentia communis expresses more what we now 
mean by common sense. Sensus communis was with 
the schoolmen the communis radix et pnncipium exteri- 
orum sensuum. (See St. Thomas, Summa Theologica 
pars prima primae partis, quest. LXXIX). With us, 
common sense, called in German, gesunder Men- 
schenverstand, i. e. literally, sound human understand- 
ing, in French, bon sens, i. e. good sense — means, I 
believe, if duly investigated, sound practical judgment, 
(i. e. that sound judgment which guides us in acting), 
unaided by any art or systematic train of argumenta- 
tion, but sharpened and cultivated by practical life. 



sec. xlv.] Common Sense. 95 

That it be sound involves its being unwarped by pre- 
judice (be this individual, territorial, clannish, &c), pas- 
sion, fancy, fear, or anything else, but sound native 
sense alone is not common sense ; it is only the foun- 
dation. Native sense must have been invigorated or 
practised by practical life, to become common sense. 
An Indian who has never lived among the whites might 
be possessed of much common sense among his red 
brethren, but it would be necessary for him to live 
among civilised people, and to learn how to apply his 
native sense to their practical life, before we could 
ascribe common sense to him (2). 

(1) The original is, " C'est le bon sens qui donne aux mots 
leur signification commune, et le bon sens est le genie de l'hu- 
manite." Hist. Gener. de la Civilisation en Europe, Lecture I. 
Degerando, in his Comparative History of the Philos. Systems, in 
French, calls, vol. i. p. 312, common sense : vulgar (he ought to 
have said common) reason indeed, yet practical. 

(2) Archbishop Whately gives the following definition of com- 
mon sense, in the preface to his Elements of Logic, and likewise 
in his Introductory Lectures on Political Economy. " Common 
sense is an exercise of the judgment, unaided by any art or sys- 
tem of rules." This definition seems to be deficient; for com- 
mon sense cannot be an exercise, an action, it must be a faculty ; 
and it would include genius, which, in the case of a young general, 
finds vast and new resources, unaided by any system of rules, as 
well as the humblest intellectual effort of an idiot. 

XLV< The term ' common' is not used in this con- 
nexion, to indicate that common sense is of peculiarly 
common occurrence, but to express its relative position 
to the cultivated intellect, searching and comprehensive 
reflection, elevated reason, or expanded genius, as well 
as that its exercise is daily called for by the common 
occurrences of life. When common sense is well versed 



96 Political Ethics. [book i. 

and practised, and judging for the given, present case 
only, we call it tact. Tact is instinctive, practical judg- 
ment ; and by instinctive, I do not mean, in this case, a 
species of practical judgment, implanted, ready-made, 
by nature, but that judgment which has been so well 
practised by experience, as to operate in ordinary cases 
so rapidly, that we are ourselves unconscious of the 
operation. From these remarks, it will plainly appear, 
that no man can dispense with a degree of common 
sense, not only as being requisite for the common con- 
cerns of life, but likewise for the application of any rules, 
whether scientific, religious, or aesthetic. The divine, 
without common sense, acts as injudiciously as the most 
learned lawyer, the most gifted poet, or best-bred phy- 
sician, in their respective pursuits. 

The more we move in a sphere of action, such as 
politics eminently are, the more important strong com- 
mon sense becomes. We want it always to apply our 
rules, to fix on the proper limits, beyond which any rule 
transcends its own spirit, to select the proper means of 
action, and to discover the true wants. But indolence, 
arrogance, ignorance, or cunning, alone pretend that 
common sense suffices for all the many intricate and 
momentous questions in politics, especially when, what 
is frequently the case, people mean, by common sense, 
little else than something, given to man in a finished 
state, which requires no cultivation or practice, but de- 
cides intuitively always right, as the dog, which searches 
for truffles, stops where these plants are deep beneath 
the surface of the earth. 

XLVI. There have always existed a class of flatter- 
ers who tell the unlettered, that common sense is suffi- 



sec. xlvj.] Common Sense. 97 

cient to penetrate the subjects which cannot be com- 
prehended but by patient study and faithfully gathered 
experience. There are books, the titles of which pro- 
mise to teach the art of riding perfectly, or to speak 
French completely, in two hours. I have heard a pro- 
fessor of philosophy publicly assert, that nothing but 
what could be made plain to the intellect of a child, 
was worth anything in philosophy, and that the great- 
est truths of philosophy could be made thus plain. 
How or why I have never learned. Why not the 
same in all other far less abstract sciences? I have 
heard 'the unsophisticated, uneducated minds of peo- 
ple, who sit under their own vine and fig-tree,' publicly 
flattered. Sophistry is very objectionable indeed; but 
cultivation of mind is not sophistry, and an uncultivated 
mind, I mean uncultivated by the times, the general 
civilisation we live in, the life of the individual, &c, is 
a very rude thing. Look at the unsophisticated New- 
Zealanders. The world was not made for the indo- 
lent ; the active rule. We have to work faithfully, to 
learn honestly, and gather industriously, that we may 
learn to do right. We must not minister to one of the 
worst dispositions, by telling the idle that they have to 
learn nothing, that the cultivation of the mind is useless. 
This flattery, however, has nowhere been so much 
resorted to as in politics. Courtiers have told young 
monarchs, that they are far above learning and studious 
application, and demagogues have told the people, that 
common sense is sufficient for everything. Do we 
navigate by common sense, or by observations taken 
skilfully and regularly ? Do we cultivate the ground by 
dint of common sense, or all the experience of century 
upon century stored up in agriculture, and applied, not 

VOL. I. 13 



98 Political Ethics. [book i. 

without common sense as a matter of course ? There 
have always been prominent men without learning, but 
because Napoleon conquered Italy, when twenty -seven 
years old, or Alexander, Asia, before his twentieth year, 
is there no art of war, no science of tactics ? And, above 
all, were their minds cultivated or not ? Besides, we 
are often greatly mistaken respecting the time and in- 
dustry bestowed by those who have excelled, on their 
peculiar subject. At times this appeal becomes pecu- 
liarly dangerous, because all men are but too apt to 
consider that to be plainly pointed out, to be proved 
by common sense, which we see, nevertheless, much 
distorted by our peculiar state of feelings or prejudices. 
As to whether * plain common sense ' be sufficient to 
grapple with law questions, see what I say on Interpre- 
tation in Political and Legal Hermeneutics. 

XL VII. I cannot conclude this chapter without ad- 
ding one more remark which is not without its applica- 
tion in politics and law. It is a common and neverthe- 
less capitally erroneous notion, that the uncultivated in 
any art or science are the best judges. A picture 
may be very poor indeed, and yet be mistaken by 
children or animals for reality. It is an observation of 
frequent occurrence; and he who told first the well- 
known anecdote of Apelles, or repeats it, to prove 
how well the Greeks painted, because the birds flew 
at the painted grapes, shows that he knows little about 
the art. Nothing is easier than to make even wild 
beasts mistake coarse imitations for real animals. No 
uncultivated mind loves music which consists of any- 
thing more than loud and various sounds. Pure har- 
monious music not unfrequently pains the savage. 



sec. xlvii.] Cultivation Indispensable. 99 

Nature has no charm for the uncultivated, except per- 
haps by way of roving in the open air. But the star- 
light sky, the moon silvering the vast expanse of a 
rippled ocean ; the richness of thick foliage interwoven 
with slender flowers, the grace of the blade and the 
strength of the oak, have no charm for the so-called 
natural man. The most picturesque sceneries of Eng- 
land were considered no better than barren, unpleasant 
spots, even at the time of lady Montague. See her 
Letters, late edition by lord Wharncliffe. So we are 
told that the truly great in the moral world will never 
fail to strike the uncultivated. It is radically wrong ; 
only we must not confound cultivation of soul with 
school education, which may or may not be bad, or 
with the distortion of the mind — the effect of vitiated 
times. Life and times also educate. It is true that that 
which is essentially great, beautiful, good, strikes that in 
us which is essentially human, and therefore will strike 
generally, i. e. beyond the bounds of nations and ages, 
as the works of Praxiteles, or a noble deed or delicate 
trait, related by Herodotus, will be appreciated for ever ; 
while that which pleases by way of fashion, sinks and 
withers with the caprice or mistaken refinement which 
produced it. Yet it requires due cultivation to value it. 
This mistake is founded upon the still more general 
confusion of ideas by which rude and uncultivated 
minds are considered as being in a more natural state 
than cultivated ones. More of this in the next book. 

It is very true that men fall in love with what has 
cost them much labor, and many abuses are perpetuated 
simply because it has taken those, who ought to effect 
a reform, much trouble and perseverance to bring their 
minds to submit to them. But this proves nothing 



100 Political Ethics. [book i. 

against us. Many excellent law reforms have been 
started by non -professional men, because they saw 
more freely, judged more boldly, felt more deeply. 
In the second book I shall quote a remarkable pas- 
sage of Lord Bacon's on this subject. Yet what they 
saw or felt or judged of they did not perceive intui- 
tively. The nobler anything in creation, the more it 
requires cultivation, development ; the lower the animal, 
the closer it is connected with the whole material world 
around it, the less it acts by volition. The noblest 
object in the scale of our terrestrial creation, is the 
human mind, which, considering the degree of perfec- 
tion which it may reach, starts less finished into exist- 
ence than anything else. It may be compared to a 
few given points or positions in the highest analysis, 
from which a vast solution is to be derived. Again, 
the noblest, vastest, highest institution is the state, 
which for that very reason requires more cultivation 
and exertion of the highest and best powers than any 
other. History abundantly shows that it is the cul- 
tivated, not the pedantically learned, who are the 
leaders ; the instinctive fear of ignorance makes it 
shun or yield obedience to cultivation. The belief that 
learning trammels the mind for practical purposes, and 
especially for politics, is very common ; yet throw a 
glance at the list of the great counsellors of monarchs 
or nations, and select those who have served them 
best and most truly, they have been nearly all hard, 
honest students ; look at such men as Michel l'Hos- 
pital, sir Thomas More, or the friar Sarpi, whom 
Venice, the shrewdest of all republics, appointed ad- 
viser to the state. Nor shall you arrive at different 
results, if you view the nations of the earth. Greece, 



sec. xlviii.] Cultivation Indispensable, 101 

which stands at their head, did not arrive at that 
proud historical eminence by mere instinctive genius ; 
see how their great men labored and toiled, though no 
nation probably was at the same time more happily 
gifted ; how earnestly their statesmen as well as artists 
studied. Think and act, and you will influence. 

XLVIII. If we are desirous of doing our duty, we 
must know it, and we cannot know it, without an 
accurate appreciation of the relations which may call 
for its exercise. In political ethics, therefore, it will be 
necessary, before all, to have a distinct idea of what 
the state essentially is. I have given my views of this 
greatest institution in the next book. I shall be obliged 
to treat in it many problems properly belonging to natu- 
ral law, but the reader will find that this apparent de- 
viation from the subject strictly before us, was neces- 
sary. We cannot thoroughly discuss and investigate 
the duties of the citizen, for instance, when in the oppo- 
sition, his obligation as to unwise, unjust or depraving 
laws, his rightful conduct as executive officer, in a 
word, all his ethic relations growing out of the state, 
without first inquiring into the essence of this institu- 
tion ; and as I cannot, without many reservations, sub- 
scribe to any extant political theory, I shall be obliged 
to give my own views, before I proceed to treat of 
political ethics proper. 



BOOK II. 

THE STATE. 
CHAPTER I. 

The Law is everywhere. — What is Law? — Sociality. — Origin of the 
Family. — Of Society. — Everything conspires to lead Men to Society. — 
Strong and natural Ties in Family Affection, Language, Division and 
Union of Labor. 

I. If you leave your home to take an airing, you 
may walk in security on the side -walk of the street, 
because you know that no rider will disturb you. 
Who or what prevents the people on horseback from 
making use of that part of the public road ? The law, 
or if they were to disregard it, certain officers, that is, 
men invested with authority likewise by the law, who 
have been charged to enforce this among other laws. 
This law then protects you. You proceed farther, and 
find these words on the sign-board of a bridge, " Keep 
to the right as the law directs," addressed to those 
who guide a vehicle. It is a law which commands 
something. You may pass an orchard, with inviting 
fruits ; the fence surrounding it might be easily scaled, 
and you feel an urgent impulse to slake your thirst with 
the juicy apples before you ; yet you must not do it. 
Were you to follow the dictates of your desires, though 
most natural and perfectly innocent, the law would 
punish you, because it protects the orchard as the pro- 



104 The State. [book ii. 

perty of some one else. The law is made already, and 
thus it warns you. A decrepit and poor man is pre- 
vented by certain officers from asking those persons 
who show by their dress, that they live in ease, to give 
him from their superfluity, that which he is unable to 
obtain by his own exertions ; he is taken to a house 
designated by the law as a home for those persons 
who cannot earn their living. You sail on the vast 
ocean, at a great distance from all society; a man- 
of-war, perhaps belonging to a different nation, thou- 
sands of miles from your own, bids you to lie to 
and show your colors. An officer comes on board 
your vessel, asking for your papers, and requesting 
you to go with him on board his own. If you refuse 
to comply with his request you expose yourself to 
vexations, perhaps to danger. It is the law of your 
land and that observed among nations, which obliges 
you to provide yourself with those papers and to pro- 
duce them under these circumstances. In a foreign 
port a consul of your own nation advises, and, if need 
be, protects you. The law directs him to do so. You 
see an individual depriving another of his life, violently 
and considerately ; yet nobody attacks the one who 
kills, or rescues the other, doomed to die, because the 
law has decided that he should die in this manner — it 
is an execution. The law establishes schools and 
obliges parents to send their children to them. The 
law assists a poor man to obtain his dues from a rich 
one, and again it protects the rich s6 that the poor shall 
have no more than their due. A single individual says 
the harshest things of those in power, yet no one 
molests him, because the law has said that he may do 
so ; and again, there are laws which all or nearly all 



sec. i.] What is the Law? 105 

dislike, or declare unprofitable, nay, even cruel, and yet 
they are obeyed unaided by physical force. The law 
has built highways, united rivers, severed mountains ; 
it takes away property for the public benefit, and pro- 
tects it; sends expeditions into remote regions, has 
founded libraries and collections of works of art, adorns 
and beautifies ; the law takes care that the merchant 
measures with a true yard-stick, and tells him in 
what money he must pay his debts; it condemns 
unwholesome food, prohibits your having more than 
one wife, punishes public immorality, interferes if your 
occupation disturbs or annoys others, obliges you at 
times to take up arms, at others, it prevents you from 
using them to avenge the most signal injustice, and at 
others, again, it permits to use them. What then is 
this law, invisible, yet seen in its effects everywhere? 
Whence does its binding power flow, that we obey it, 
even though we disapprove of it, and though unactuated 
by fear, which interferes with my most natural appe- 
tites, may deprive me even of the simple right of 
locomotion and confine me in a lonely cell; gives, 
divides and defends, or takes away property ; assures 
me that it will carry out my will and disposition, even 
after my death, and defeats my will though distinctly 
pronounced ; protects my life, may demand of me to 
expose it, or may take it under certain circumstances ; 
prohibits me from avenging wrongs, interferes with my 
own disputes, tells me I must not do a thousand things, 
though I may have a strong desire to do them, or that 
I must do things to which I feel a decided aversion — 
in fine, which accompanies me wherever I may go, 
penetrates into all relations of men to men, to animals 
and things, and what is most remarkable, is never 

VOL. I. 14 



106 The State. [book ii. 

intermitted or suspended, but continues to act and 
every day creates new rules and regulations for man's 
conduct and his various relations ; and with unceasing 
and inexhaustible energy seizes upon every new con- 
dition of men or things that may spring up ? What is 
this law, that is so closely connected with ourselves and 
everything relating to us, that few things, indeed, are 
out of its reach, but that it is carried along with every 
individual into all new relations, actions and operations ; 
which extends over men, animals, the fruits of the field, 
the game and trees of the forest, the rocks and minerals 
in the bowels of the earth ; which is so inseparable 
from man, that whatever he touches he brings under 
its domain, even the produce of the vast and distant 
sea, in fish, whale, seal, plants, shells, amber and pearls, 
and encompasses what the fury of the winds had car- 
ried to the bottom of the ocean, ownerless as it may 
be, the moment it is brought to light, to human use 
again ? What is this law ? 

Law is the direct or indirect, explicit or implied, real 
or supposed, positive or acquiesced in (1) expression 
of the will of human society, represented in the state, 
or, of a part of human society constituted into a state. 
And what is this state ? Whence does this derive its 
all-pervading power, and more especially, its right to 
this power 1 How did it originate ? How far does its 
rightful power extend, or is it unlimited, and is there 
absolutely nothing beyond its reach ? 

(1) Direct or indirect, i. e. by laws which emanate directly 
from the highest authority of the state, or from societies, founded, 
or permitted to exist by the state. Explicit or implied, i. e. by 
way of custom, which again may have been acknowledged dis- 
tinctly or tacitly. (See on Obedience to the Laws). 



sec. iv.] Man's Sociality. 107 

II. We have seen, in the first book, that morality 
necessarily implies individuality. No virtue, merit, fault 
or crime, in the strict sense of the term, can be common 
stock among several individuals. There is no accounta- 
bility without individuality. If three men jointly save 
the life of a fellow-man, at the imminent risk of their 
own, or murder him, that which is good or wicked in 
these joint actions belongs separately or individually to 
each of them. In the latter case, the death of the mur- 
dered man was the joint effect of the separate actions 
of three individuals ; but the crime, the murder, that is, 
the criminality of the action, is each one's own, pro- 
vided the aid of each in perpetrating the act, was equally 
essential in bringing about the criminal act. Simple as 
this truth is, yet there have been people who reasoned in 
this manner : " Since but one murder was committed, 
and three persons jointly effected it, it appears that each 
one cannot have committed a murder, but only part of 
it," thus confounding the effect, that is, the extinguish- 
ing of the life of one human being, with the moral action, 
the murder. As if among the thugs in the East Indies, 
the shumseea, or ' holder of hands,' were not as much a 
murderer, and as guilty, as the bhurlote, or 'strangles' 

III. Besides man's individuality, we have now to no- 
tice his sociality, or the necessity imposed upon him to 
associate, both for the purpose of obtaining ends of the 
highest importance in the physical as well as intellectual 
and moral world. 

IV. Of all animals, man is born not only in the most 
helpless state, but the infant requires the care of its 
mother long after it has ceased to derive its nourishment 



108 The State. [book ii. 

from her, which causes not only a physical but also an 
intellectual education. Hence the fact, that the attach- 
ment between human parents and their offspring is far 
more enduring than between other animals. This edu- 
cation lasts so long, the child requires the care, pro- 
tection and guidance of its parents for so extensive a 
period, that they may have other children before the 
first is able to take care of itself. From this circum- 
stance, and the continuity of conjugal attachment, which 
is not, as with animals, limited to certain seasons, origi- 
nates the perpetuity of the conjugal union, as well as a 
mutual attachment among the children, while with other 
animals no connexion, or a very limited one indeed, ex- 
ists between the offspring of the various seasons. The 
protracted state of the child's dependency upon the 
parents produces habits of obedience, respect and love, 
and, at a more advanced period, a consciousness of 
mutual dependence. The family, with its many mutual 
and lasting relations, increasing in intensity, is formed. 
The members of a family soon discover how much ben- 
efit they derive from reciprocal assistance, and from a 
division of occupation among them, since man is placed 
in the world without most of those strong and irresisti- 
ble instincts, which are given to other animals for pro- 
tection or support, and which seem to increase in spe- 
cific intensity, the lower the animal stands in the scale 
of animate creation, thus approaching more and more 
the plant, which lives without any self-action — an abso- 
lute slave to season, clime and soil. 

So little is man instinctive, that even his sociality, so 
indispensable to his whole existence, has first to be de- 
veloped. He is led to it indeed by the natural relations 
between the progenitors and their offspring, as we have 



sec. iv.] The Family. 109 

seen ; but he is not, strictly speaking, a gregarious ani- 
mal (1). Gregarious animals do now congregate as 
they have ever done ; but man's sociality increases infi- 
nitely with every step he makes in the progress of civil- 
isation. His sociability is, on this account, not the less 
natural. We shall presently see the true meaning of 
this term applied to man. 

Man does neither act by instinctive impulses, so nu- 
merous and so strong regarding specific actions, as we 
find them with the brute, nor does he lay the founda- 
tions of the many institutions which become important 
in course of time, after mature reflection, as if he knew 
at the time to what momentous consequences they 
would lead. It is a common error, which has misled 
many of the greatest philosophers, to ascribe to the 
free action of ripe judgment and forecast, what must be 
derived from quite a different source. Nearly all the 
mistaken notions of the origin of the state can be re- 
duced to this fallacy. Mr. Say (2) says, the first men 
united into societies, to protect themselves and to assist 
each other in obtaining food. This is erroneous ; doubt- 
less they soon found out, that they might protect and 
assist each other in hunting, fishing, tilling the ground ; 
but they were already united, when they found it out, 
or they would never, perhaps, have discovered it. How 
rare are the instances, and these few only at how ad- 
vanced a period of human society, of a number of people 
congregating together purposely, and after well-weighed 
deliberation. It is fallacious, I repeat, to ascribe our 
knowledge, experience and views, to former, and es- 
pecially the earliest ages. The ancients were well 
aware of the fact, that men had not united into socie- 
ties by the free consent of previously disunited individ- 



110 The State, [book ii. 

uals, but were kept together by their nature. They 
went, however, too far on the other side. Cicero says, 
bees do not congregate for the purpose of constructing 
a honeycomb ; but, being by nature gregarious animals, 
combine their labors in making the comb. And man, 
even still more is formed by nature for society, and sub- 
sequently as a member of society, promotes the common 
good in conjuncti'on with his fellow-creatures. Neither 
one or the other is the case. It is true, indeed, that 
man is led to promote the final ends of society, to move 
towards them, long before he is fully aware of them ; 
but he is not, as has been stated, instinctively gregarious ; 
nor does he join society in consequence of reflection. 
He is led to do it by his nature, physical and intellect- 
ual, which gradually unfolds itself with every step of 
progress he makes. By the nature of man is under- 
stood something very different from instinct, as will 
appear from the sequel. But why did men unite, or 
remain united ? How did they come to congregate, 
long before they were aware or could be conscious of 
the many advantages derivable from association ? Be- 
cause they could not help it. Their nature, physical 
and moral, their constitution, their affections, kept them 
together, but did not originally lead them to it from a 
state of isolation. Separation is only a second step ; 
total and protracted insulation, however, the unnatural 
state of some later periods. 

(1) See Cuvier's Le Regne Animal, article Homme, page 69 
&, seq. of vol. i., Paris edit, of 1S29. The work has been trans- 
lated. 

(2) Tableau generate dc Feconomie des socictes, page 544 & seq. 
in Say's Cours complct d'economic politique practiquc, 3d edit. 
Brussels, 1836. 



sec. iv.] The Family. Ill 

I may mention another mistake of Say's ; his name stands 
in this case but for a large class of reasoners. On page 545 of the 
above work and edition, he says, the principal object of all human 
societies is to provide for their wants (by which physical wants are 
meant). How does he know that this is the chief object ? Be- 
cause, says he, we find this trait in all societies, rude or culti- 
vated. As an instance how to proceed, in order to find the essen- 
tial point of any institution, and to separate it from what may be 
accidental, he mentions, on a previous page, marriage, and argues 
thus : " We shall immediately see that it is the want of nature 
which induces man to unite with woman, to produce children, and 
to bring them up, in order to see himself replaced by them in the 
course of time. It is this the essential in marriage, that which 
constitutes it." All the rest, as ceremonies, &c. he declares as 
accidental. Does man, desirous of marrying, really argue thus 1 ? 
Has he really, at that period, the continuation of mankind so 
much at heart? Is marriage with most men the effect of reflec- 
tion? But we waive this and shall only remark the grossly illo- 
gical process of argumentation. That which is common to all the 
species of a genus, is therefore the essential point of them ! All 
apples are round or nearly so, all horses have four feet, therefore 
roundness is the essential point of apples and quadrupedity of horses. 
Procreation is not the characteristic of marriage, for if so then it 
belongs to all animals. It is, among other things, the permanency 
of this union of persons belonging to different sexes, and the ex- 
clusiveness (whether monogamic or polygamic) which makes the 
union a marriage ; and its object is far higher than mere procrea- 
tion, which, as we see from the animals, does not require a per- 
manent union. It is the family life, the development of all the 
fruitful relations within the family, and the protection of the 
female and education of the young, which form some of the essen- 
tial objects of marriage. The characteristics of marriage are the 
permanency and exclusiveness of union between individuals of 
different sexes ; for the marriage is marriage though there be no 
issue. But Say fell into this mistake because he adopted the 
almost universal error of looking backward instead of forward, 
of looking to the savage man, yet ascribing to him views and 
foresight of more advanced periods — instead of considering the 
civilised man and the invariable fruits of civilisation, when the 
problem is to discover man's true nature. 



112 The State. [book ii. 

V. The fact that men remained socially together, 
lived united in a family, caused them to make ample 
use of the organs of speech, so peculiar to man (1) — 
language developed itself, the most powerful of all ties. 
Experience, knowledge, acquired skill, could now be 
transmitted from one to another, from the older to the 
younger, traditionally from one generation to another. 
The same'with regard to affections, to experience, enjoy- 
ments, dangers, sufferance, and supposed or really great 
actions. Language gave contiguity to the family, tribe 
or larger society as such ; by language and its power 
of transmitting ideas, distant members of the same 
family were enabled to know that they belonged to the 
same stock, were people of the same extraction ; family 
recollections, prejudices and affections expanded into the 
common feelings of the tribe. Language became a new 
and potent agent, both in the development of man's 
character and the progress of civilisation, however slow 
this must have been in the beginning, especially before 
the art of writing was invented ; in the uniting genera- 
tions with generations, and in awakening in man the 
consciousness that he is essentially a member of a so- 
ciety, not only as to its present existence, but likewise 
as to its connexion with previous and future genera- 
tions, that he is indebted to the former, and that the lat- 
ter will depend upon him. Man began to perceive that 
he is closely united with a permanent society, that his 
weal and woe is interwoven with it. As he has affec- 
tion for the members of the same family, so he found 
them enlarged into affections for a wider society, he felt 
himself mingled with it, with its recollections, its history, 
and its future destiny ; he loves his tribe, his nation, his 
country, until at last this feeling becomes a distinct and 



sec. vi.] Division of Labor. 113 

ardent devotedness to his country, becomes patriotism, 
and the philosopher pronounces, non nobis sed rei-pub- 
licae nati sumus. 

(1) See Herder's Treatise upon the Origin of Language (a 
4 crowned' prize Essay), translated from the German, London, 
1837. I wish, however, not to be understood as agreeing with 
those scholars who ascribe the origin of language to this supe- 
riority of the organs alone. The noblest organ would not have 
produced language, had man not felt urged to express thoughts 
and feelings. See likewise the various works on the human voice, 
for instance that of Dr. Rush. 

VI. The various members of a family could not live 
together for any length of time, without a certain degree 
of division of labor. No number of individuals can as- 
sociate with one another, for whatever purpose this may 
be, not even children for the sake of playing, without 
dividing, in a degree, labor among them (1). Indeed, 
the first division of labor must needs have begun be- 
tween man and wife, brought and kept together origi- 
nally by physical difference and social desires. Division 
of labor, and what is indispensably connected with it, 
union of labor or association of energy, leads naturally to, 
and, in fact, is of itself, exchange, bartering, so peculiar 
and characteristic of the human species, as we have 
seen in the first book. This forms another bond of 
society. The division of labor and consequent ex- 
change lead, moreover, soon to the idea of property, 
the desire of retaining free mastership over that which 
we have acquired by our own industry, perseverance, 
courage, sagacity, or any other exertion of our mind or 
body, or by good fortune. 

(1) Men, ever so strange to one another, if brought together, 
must divide labor. All cannot row and steer at the same time. 
VOL. I. 15 



114 The State. [book ii. 

When a caravan halts after a day's journey, one of each mess will 
naturally attend to the camels, another prepare the pillaw, a third 
one will unroll the mats. The inmates of each room in a hospital 
always form soon a little community founded on the division of 
labor. Everything conspires naturally to unite men ; reflection, 
at a later period, finds out how salutary, what a blessing social- 
ity is. 



(115) 



CHAPTER II. 

Property. — Mine and Thine. — Origin of Property. — Various Titles. — In- 
dividual Property is necessary for Man. Does not arise from Man's 
Iniquity. — Man never lives or can live without Property. — Slow De- 
velopment of Property . — In ternational Acknowledgment . — Copy-right . 
— Property with Agriculturists. — Civilisation and Population depend 
upon it. 

VIL The terms mine and thine signify a compara- 
tively close or exclusive relation between some one and 
some thing or another person. That thing to which we 
apply the term in its most intense meaning, that is ex- 
pressive of perfect mastership over it, the right, the 
power of free disposal over it, is called the property of 
this person. Though there is an infinite gradation of all 
the various relations to which the words mine and 
thine are applied, yet they have all this in common that 
a peculiar relation between the two things or beings 
is meant. We say my country, my king, my son, my 
horse, my beauty (if we wish to designate one we 
admire particularly), my sunset, &x. Man did not at 
once distinguish very accurately between all these rela- 
tions ; peculiar closeness of relation, founded on what- 
ever ground, was frequently considered as establishing 
that which we now call exclusively property. The 
father felt that his child was in a peculiarly close relation 
to him, both on account of his physical relation to him- 
self, and also because he protected the son ; the child, 
therefore, was long considered the property of the 



116 The State. [book u. 

father. The close relation of the wife to the husband, 
her dependence upon him, made her to be considered 
the property of the husband. She was, and to this day 
with many tribes is, sold to him ; even with nations 
with whom she has acquired a more independent posi- 
tion, she continues, by way of ancient marriage cere- 
mony, to be sold to the woer. 

The ideas mine and thine must have originated with 
the first thoughts of man. As soon as there existed 
more than one family, more than one couple of parents 
with their respective children, the idea of this close 
relation must necessarily have been clear in the mind 
of men. The child is much more emphatically the 
parent's, than the wife is her husband's. She may 
cease to be his, the child cannot change its relation to 
its parents. Besides, conjugal relations are but loosely 
defined and acknowledged with most tribes I believe, 
perhaps with all, in the early stages of society ; and, on 
the other hand, the human mind has not yet succeeded, 
as already alluded to, in drawing a distinct line between 
that relation to which the word mine is applicable on 
account of affection, duty, &,c, and that to which the 
same term may be applied on account of absolute dis- 
position over it. All early nations, I believe, have 
started from the idea that the child is bona fide pro- 
perty of the father, to be sold or exposed and killed 
according to his pleasure. Again, affection itself must 
soon have given birth to the idea of mine and thine. 
There is no heart so cold, no intellect so dull, which 
is not struck at once by the force of the term, or 
the feeling expressed by the words, 'my child,' 'thy 
son.' Animals have undoubtedly this feeling too, and, 
for a time, in a very strong degree. We see it by 



sec. vii.] Mine and Thine, 117 

the readiness with which the parent sacrifices itself 
for its offspring; but the feeling vanishes soon, and 
the brute intellect is too confined to develop it in 
any high degree. Applied to things, to objects of the 
inanimate world, the idea must present itself at an 
equally early period. The father has to provide for his 
children; the absolute necessity establishes the abso- 
lute right to do it. If he has broken off a branch 
of bananas for himself or children, and some one else 
would take it from him, he would answer at once in 
the most practical and most philosophical manner, " the 
bananas are mine, I plucked them." The title is proved 
in this case in the most forcible manner by that- mode 
by which we prove, and conclusively, too, so many 
elementary positions — the exclusion of all the contra- 
ries, "to whom should this belong if not to me?" Has 
he not exerted himself to obtain them ? has he not, by 
his industry, established already a closer relation be- 
tween them and himself, than any one else? The 
same is the case with his arrow, spear, the first animals 
he tamed, the first plants he saved, the first trap he 
made. They wear the imprint of his labor, they are 
assimilated with himself (1). If the thing to be appro- 
priated belonged to no one, to whom can it possibly 
belong, if not to him who took pains to obtain it ? Man 
continues to establish thus his title to property every 
day. All unappropriated things, for instance, the fish 
in the ocean, become appropriated as soon as caught, 
that is, as soon as placed in an exclusive relation to 
some one. The whale is the property of no one, until 
the harpoon of the hardy whaler has wounded it. 
From that moment it is his. Even the mere chasing 
would establish, though no legal title, yet a socially 



118 The State. [book n. 

acknowledged one, and it would be considered very 
unfair among whalers if others were to interfere in the 
pursuit of this, considered already an appropriated whale. 
This right of property by assimilation or imprint of labor 
or industry, if not appropriated before, confers certainly 
a strong title, and it might be said, that as all capital is 
accumulated labor, labor saved, we likewise establish 
our title to property in civilised societies, if we buy 
them lawfully, that is, if we give accumulated labor for 
it. So strong is the title conferred by labor that men 
are ever unwilling to dislodge, without any considera- 
tion, settlers who have improved the soil, though it did 
not belong to them, and on which they have, conse- 
quently, settled unlawfully. Many legislatures in the 
United States and other countries, have afforded in- 
stances of this partial acknowledgment of a title under 
these circumstances. 

(1) See Locke on Civil Government, chap. V. 45 &, seq. 

VIII. There remain, however, various important 
questions yet to be answered, and many other titles 
to property yet to be examined. 

Why, it has been asked, should man be allowed to 
appropriate more than is necessary for his support? 
We ask, what support is meant? The momentary 
satisfying of his hunger, by shooting a deer, plucking a 
fruit? Is he allowed to shoot several deer and dry 
the meat for the winter ? Is he not allowed to culti- 
vate a tree, which shall give him fruit for certainty, so 
that he may not be exposed again to hunger, the pain 
of which he knows already ? May he not cultivate a 
patch of land to have corn for his children ? If he has 
slain a buck to satisfy his hunger, is he allowed to 



sec. ix.] Origin of Property. 119 

appropriate the skin to himself and call it his own ? If 
the industrious fisherman sails to the bank of New- 
foundland to appropriate to himself the unappropriated 
codfish, has he no right to catch as many as he thinks 
he and his children shall want for the whole year? 
But they cannot live upon codfish alone ; may he not 
take so many codfish as to exchange part of them for 
other food, for clothing? Does supporting his family 
not include the sending of his children to school ? May 
he not catch some more to save the money he may 
obtain for it, that, should he perish at sea, his wife and 
children may not suffer from want or become a burthen 
to others ? Where does the meaning of support stop ? 
Why should it apply to the satisfying of physical wants 
only? There are wants far higher than these — the 
wants of civilisation. We want accumulated property ; 
without it, no ease ; without ease, no leisure ; without 
leisure, no earnest and persevering pursuit of know- 
ledge, no high degree of national civilisation (1). Aris- 
totle already lays it down as the basis of high civilisation, 
to be free and have leisure. Still the question would 
remain, why have private property ? It is the very ease 
which we are promised by those who recommend to 
us a system of common property. 

(1) That by leisure I do not mean idleness, is clear. No 
harder working men than those who pursue sciences ; but know- 
ledge must sink, where every one has to work for his momentary 
and daily support. 

IX. Each man is a being of himself, an individual ; 
his individuality is all-important. He has a natural 
aversion to being absorbed in an undefined generality. 
From early childhood man feels an anxiety to be a 



120 The State. [book if. 

distinct individual, to express it, and consequently to 
individualise everything around him. Man must ever 
represent in the outward world, that which moves his 
inmost soul, the inmost agents of his mind. Property 
is nothing else than the application of man's individ- 
uality to external things, or the realisation and mani- 
festation of man's individuality in the material w T orld. 
Man cannot be, never was, without property, without 
mine and thine. If he could he would not be man. 
In all stages of civilisation, at all ages of his life, we find 
him anxious to individualise things, to rescue them as 
it were from undefined generality — to appropriate. It 
is a desire most deeply implanted in man. Children 
will call a certain peach on the tree mine, another thine, 
without the least reference to its final consumption. 
The child is anxious to have a bed in the garden of his 
parent, merely to call it his own. When children look 
at flying birds, at passing clouds, they are apt to single 
out one or the other and call it mine, yours, &c. No 
complaint of the poet is more melancholy than that 
no heavy blade falls under his own sickle. Children 
in houses of refuge are most anxious to have a little box 
of their own, to have something in the wide world 
which they may call their own. The most abject 
galley slave and the most powerful king strive equally 
to acquire some property, to have something they can 
call specifically their own. The former contrives to 
obtain a box or chest which may belong to him exclu- 
sively, the latter saves and buys property. And why 
should this anxiety have been so deeply implanted in 
the human breast? Because, as will be shown, private 
property is the most powerful agent in the promotion 
of civilisation ; an agent which has this striking pecu- 



sec. ix.] Individual Property. 121 

liarity, that while it originates with man's individuality, 
it is at the same time the surest and firmest bond of 
society. 

Whatever is absolutely necessary for man's physical 
or intellectual existence, providence has accompanied 
with pleasure. It is a pleasure to eat when hungry, to 
drink when thirsty, to sleep when tired, to awake after 
a long sleep, to love and care for one's children, to 
speak and commune with others after long solitude; 
the mere utterance delights the child. It is a pleasure 
to meditate, to analyse and combine; a pleasure of 
itself, to produce, to work with effect ; it is a pleasure to 
assist others, a pleasure to accumulate property — to indi- 
vidualise things and to place them in a closer relation to 
yourself. The first field you buy makes you feel happy, 
not because it will give you more or better fruit, than 
you have enjoyed before, but because it is yours, just 
as the child is delighted to call a dog or bird its own. 
The human heart is delighted at finding its individuality 
reflected in the external world. That deep-rooted and 
noble love of independence is founded upon nothing 
else but the original anxiety of constituting a distinctly 
separate individual, and being acknowledged as such. 
And as unrestrained pleasure in eating or drinking 
degenerates into gluttony or intemperance, so does the 
immoderate desire of appropriation degenerate into ava- 
rice. There was good reason for placing avarice as the 
second of the cardinal vices, because man has so strong 
a temptation to fall into it. All vices that beset us 
most, are those which consist in a degenerate excess 
of the most natural and, therefore, most deeply implant- 
ed principles of our soul. 

VOL. I. 16 



122 The State. [book ii. 

X. The process of the individualisation of things or 
effecting a relation between man and things, is various. 
It may be effected, 

by production — if I make a boat, a book ; 

by appropriation — if I gather fruits, or take fish ; 

by occupancy — if I declare things mine and am 
able to maintain my declaration, 

a. by force (conquest, see further below) ; 

b. by law, and here again 

by preemption, 

by positive declaration of law, &c. 

by mixed production, — if I tame animals, cultivate 
the ground ; 

by conveyance of the right of others — by grant, by 
sale, 

&c. &c. 
It is by no means said that these titles are absolute, 
or that they may not be regulated or interfered with by 
law. Many civilised societies prohibit too large an ac- 
cumulation of property, and too multiplied a division of 
real estate. Nor is it said that there is not somewhere 
a power which can change it. I do not mean to con- 
vey the idea that all sorts of titles are unimpeachable. 
If a country is really over-peopled, and if they cannot in 
any other way obtain additional land, although it may 
be unsettled, they are perfectly right in conquering it. 
Who would deny it ? V All I maintain, is the principle 
that man must live with individual property. It is for 
natural and positive law to inquire fully into the nature 
of the various titles, and all their bearings upon society. 

XI. The idea of property, that is of a peculiar rela- 
tion of man to things without him — a relation distin- 



sec. x.] Individual Property. 123 

guished by a degree of exclusiveness and by peculiar 
reference to him, which involves the power over it, of 
disposing of it — grows out of the very nature of man, 
and, consequently, we find him at no stage without pro- 
perty. We do not, indeed, meet with landed property 
with all tribes, but the rudest islander of the Indian Ar- 
chipelago, the lowest inhabitant of the Aleutian group, 
will call the fish-hook he made, the canoe he bartered 
for, the dress which he prepared of skins obtained by 
himself, his own, and consider every attempt to dispos- 
sess him of these articles as a gross outrage. Nor has 
there ever existed a society without property. We have 
seen trials made of establishing societies, within which 
no individual property on a large scale was to be ac- 
knowledged, e. g. that of Mr. Owen in New Harmony, 
or that of the St. Simonists in France. Some have suc- 
ceeded in a degree, as Mr. Rapp at Harmony^ so does 
the sect commonly called Shakers allow of no individual 
landed property, as many Catholic monastic communi- 
ties do. But, first, their resignation of private property 
never extended much beyond what is generally called 
real estate ; and, secondly, what more did the individual, 
in resigning, do than give up his property to the commu- 
nity he joins 1 They did by no means abandon all idea 
of property, nor could they. If St. Francis prohibits 
his order from holding property, he wishes them never- 
theless to hold churches, convents, &,c. ; and if he en- 
joins them to beg for the daily support, he, thereby 
acknowledges the right of property in the donors of 
the alms. 

Suppose even that a whole nation could be induced 
to adopt the plan of Mr. Owen — and a most lament- 
able event it would be, because it would be reducing 



124 The State. [book ii. 

society to a chaos out of which it needs must strug- 
gle to elevate itself, the very next moment after its re- 
duction to it — would not that nation insist upon its joint 
property against the claims which another nation might 
set up? In a word, can we for a moment possibly 
imagine mankind without property ? All that fanciful 
minds have dreamed of a supposed golden age extends 
no farther than to very confined limits. Bring yourself 
for a moment to imagine the idea of property erased 
from the human mind ; what a state ! Nothing but 
brute force to support each single individual — a pack of 
hungry wolves. 

XII. It would not be much better were we to ac- 
knowledge the right of property in general, but to anni- 
hilate individual property within the limits of a state, 
nation, or whatever other society. The personality of 
man, the fact that every human being is, and of right 
ought to be, a moral being of himself, requires, generally 
speaking, private property. Men are not destined to 
become, after being united into a society, like a mass of 
liquid, every drop of which loses all character of indi- 
viduality. Man is, and for ever shall be, an individual. 
His goodness, his greatness, his activity, his energy and 
industry — everything good and characteristic of him as 
man is connected with the idea of individual property, 
if we include in this term, as we ought to do, the cer- 
tainty of securing individually the benefit of individual 
exertion, of labor. Depriving man of individual pro- 
perty would amount to depriving him of half his hu- 
manity. Man strives, and laudably so, to see his indi- 
vidual industry, skill and perseverance, palpably, visibly, 
bodily represented in gathered property, this ' nourisher 



sec. xiii.] Desire of Property. 125 

of mankind, incentive of industry and cement of human 
society.' (Sir James Mackintosh's speech in the com- 
mons on the reform bill). Property is intimately con- 
nected with the idea of the family, as a separate body, 
and on this account as well as on many others with the 
whole province of civilisation. Without a progressive 
advance of industry there i's no civilisation, though indus- 
try alone does not constitute civilisation ; and man's great 
destiny is civilisation. 

XIII. That primary agent within man, which we may 
call the desire of action, of which I shall speak more 
fully by-and-by, when treating of Power, impels him like- 
wise to obtain property, as on the other hand, as we 
have seen already, property gives impulse to this ac- 
tivity. Whatever point of view we may take, we find 
that individual property is natural to man, connected 
with the inmost principles of his soul, and necessary for 
him as a social being. It is not to be ascribed, therefore, 
solely and originally to covetousness. Covetousness is 
a vitiated excess of an agent or principle originally good 
or innocent. The desire of property springs so directly 
from the nature of the human soul, that it is universal, and 
it being universal, its vitiated state is also of frequent oc- 
currence. We see the same with respect to incontinency. 
The fact that covetousness is a widely diffused vice, 
has induced many people, however, to consider property 
altogether as having its origin in a vicious disposition of 
man. This view, together with the erroneous concep- 
tion of a state of nature, in which man has been sup- 
posed to have lived, before a division of property had 
been made (instead of considering property as having 
grown inseparably with man), of the principle of mutual 



126 The State. [book ii. 

love, taught by Christianity, and the community of pro- 
perty which in a considerable degree may have existed 
among the first christians, as long as they remained a 
small sect and an oppressed church, induced the early 
doctors of the church to consider the division of pro- 
perty, though not any longer iniquitous, yet having 
arisen from the iniquity of man, and being now neces- 
sary only in consequence of its continuance. St. Am- 
bros. in chap. 12, Luc, St. Chrisost. Horn. 1 in Cor., 
St. Bas. Serm., St. Clement the pope, all declare that 
no one should say, this is mine, this is thine, because 
everything is common (meaning of course among chris- 
tians). St. Thomas Aquinas says : divisio bonorum non 
est iniqua, sed iniquitatis occasione et ad iniquitatem 
avertendam sit facta. See Summa, &c. St. Thomae. 
The assumption of a division of property, as if it had 
taken place at some definite time, does not belong to 
the early christians alone. The ancient Greek and Ro- 
man philosophers speak of it ; nor can we be sur- 
prised at this view. It is a common error to ascribe 
general phenomena, presenting themselves to the eye 
of the observer as a definite thing, to an origin as defi- 
nite, to specific general actions and agreements of so- 
ciety, instead of searching for their origin in the gradual 
but steady and natural operation of principles founded 
within us, or conditions which are the necessary effects 
of the relation of our nature to external and given 
circumstances. The origin of languages, of govern- 
ments, of religions, has likewise been ascribed to ar- 
bitrary, sometimes fraudulent agreements or inventions 
of individuals. 

The fallacy in the case before us is great. It was 
first assumed that property was at some period or other 



sec. xin.] Property ivas never general. 127 

divided. If so it is clear that those who had the right 
to divide, must collectively have had possession of the 
whole — a state of things which was considered to be 
much purer. An erroneous interpretation of a passage 
in the bible (Gen. i. 28), by which man is declared to 
be ruler over all the earth, contributed to confirm this 
mistaken view. Things which are not owned by any 
individual do not on that account belong to all. What 
meaning would the word property have, if applied to 
things which are out of the reach of man and have 
for ever remained so. Have the millions of birds on the 
islands in the Pacific, which have lived and died unseen 
by human eye, been the property of any one individual 
or society ? The passage in the bible means that man 
shall be the ruler, shall, wherever he goes, subject the 
creature beneath him, and make it his own — it means 
his inherent right to obtain, acquire, produce, individual 
property, and the superiority of his mind which will aid 
him in doing so. The uncaught fish in the ocean does 
not belong to all ; it belongs to no one. Else it could 
not possibly become the property of him who catches 
it, at the moment he does so. Besides, the argument 
would apply to existing things only; how is it with 
those, which man produces ? We have a poem en- 
titled the Division of the Earth ; but I have seen 
nowhere such an event recorded in history. " To 
suppose a state of man prior to the existence of any 
notions of separate property, when all things were 
common, and when men, throughout the world, lived 
without law or government, in innocence and simplicity, 
is a mere dream of the imagination." (Kent's Com- 
ment, part v. lect. xxxiv). Modern writers have ge- 
nerally followed this idea of original common property, 



128 The State. [book ii. 

confounding non-appropriation with common property, 
with more or less acuteness from Hugo Grotius, and 
Puffendorf down to Blackstone, who but follows the 
two first named writers. Chancellor Kent, in the lec- 
ture just quoted, elevates himself to a far higher view ; 
I therefore recommend in particular its perusal (1). 

(1) Justin, lib. 43; Hug. Grotii De Jure Belli ac Pacis, lib. 
II. cap. Ill; Puffendorfs Droit de la Nature, by Barbeyrac, liv. 
IV., c. 3, 4, 5, & seq. Blackstone 2, p. 1, & seq. — Hugo Gro- 
tius, always to be read with advantage, is no less so in the above 
book, and I advise the student to reflect well on it, though I differ 
from that great writer on the original principle. 

XIV. If I say that individual property is natural to 
man, I do not wish to express the idea that I am op- 
posed to all combinations of property. On the con- 
trary, I do believe that institutions in which persons of 
very limited property, deprived of family connexions 
and advanced in life, should join their scanty means, 
in order to secure greater comfort, and, perhaps, even 
a more proper sphere of activity might prove highly 
advantageous. 

On the other hand it might be urged that, if property 
is natural to man, that is, consentaneous to the principles 
of his soul, how is it that robbery and piracy are con- 
sidered an honorable trade with nearly all, perhaps with 
all early nations, and if not absolutely honorable, still 
an occupation at which the general feeling of society 
does not seem to revolt ? When Telemachus visited 
Nestor, to obtain some information respecting his father, 
his aged host, after having refreshed his guest and prayed 
with him, says, " And now it may be meet to inquire 
and ask who the strangers are, after they have refreshed 



sec. xiv.] Piracy, considered honorable. 129 

themselves. Strangers, who are you, from whence da 
you navigate the watery way ? Is it for settled pur- 
pose, or do you roam at hazard, like robbers over the 
sea, who wander wagering their own lives, bearing evil 
to others?" (Odyssy III. 70 & seq.) Homer does 
not represent those who were asked, as spurning this 
question ; those who asked did not mean to offend (I). 
So we have only to look at the middle ages, to find 
the trade of piracy and land-robbery held in honor for 
centuries. But I have not said that because the idea 
of property is natural to man, it represents itself at 
once perfect to his mind in all its bearing ; on the 
contrary, we shall see farther below that man, a ra- 
tional being and destined for progressive civilisation, 
has to develope every institution which is natural to 
him. Was not the holding of robbery in honor rather 
a distorted view which people took of the means of 
acquiring property, considering boldness, danger, ad- 
venture, as a noble employment for freemen, but toil- 
ing for it, fit for bondmen only, than a denial of pro- 
perty? They differed from us respecting the means, 
not the matter itself; for had they not had the idea of 
property, or felt the impetus of acquiring it, why should 
they have incurred dangers to do so ? They believed 
power or courage sufficient to establish a title, not that 
everything belonged promiscuously to every one. 
• 

(1) The following passage of Thucydides, at the beginning of 
his first book, is interesting respecting the above subject : 

" The Grecians formerly, as well as those barbarians who, 
though seated on the continent, lived upon the coast, and all the 
islanders, when once they had learned the method of passing to 
and fro in their vessels, soon took up the business of piracy under 
the command of persons of the greatest ability among them, for 

VOL.1. 17 



130 The State. [book ii. 

the sake of enriching such adventurers and subsisting their poor. 
They landed and plundered by surprise unfortified places and 
scattered villages, and from hence they principally gained a sub- 
sistence. This was by no means at that time an employment of 
reproach, but rather an instrument of glory. Some people of the 
continent are even to this day a proof of this, who still attribute 
honor to such exploits if genteelly performed (' with due respect, 
with humanity,' as the scholiast explains it) ; so also are the 
ancient poets, in whom those that sail along the coasts are every- 
where equally accosted with this question, whether they are pi- 
rates; as if neither they to whom the question was put would 
disown their employment, nor they who are desirous to be in- 
formed would reproach them with it. The people of the conti- 
nent also exercised robberies upon one another, and to this very 
day many people of Greece are supported by the same practices : 
for instance, the Ozolian Locrians, and Aetolians, and Acarna- 
nians, and their neighbors on the continent: and the custom of 
wearing their weapons, introduced by this old life of rapine, is 
still retained among them." So far Thucydides. Piracy was 
considered peculiarly honorable by many tribes around the Baltic 
or on the Northern Ocean in the middle ages, for instance, by 
the Northmen. 

XV. The subject which occupies our present atten- 
tion, requires that I should anticipate a few remarks 
on a point which will presently engage us more fully, 
and to which I have had occasion to allude several 
times. The right of property has been but gradually 
recognised ; each step in the way of civilisation has 
obliged men to acknowledge it in one more of its many 
ramifications and peculiar forms. "Still I do not say, 
6 yet property is natural,' but 'therefore property is 
natural to man.' Everything that characterises man as 
man, appears clearer and more distinct with each 
advancing stage of civilisation, the true aim, not the 
artificial end of human society. We must lay it down 
as a rule, that whatever is truly natural to man, that is 



sec. xv.] Property is natural. 131 

essential to and characteristic of him, unfolds itself more 
perspicuously with the progress of civilisation, and what- 
ever shows itself in a steady gradation more perspicu- 
ously with the progress of civilisation, is truly natural 
to man. The leaf is not less natural to the tree than 
the root, though it only shows itself under the influence 
of vernal sunshine. Much confusion has arisen from 
mistaking man's savage or rude state for his natural 
state, in consequence of which man's civilised state 
necessarily appeared as an artificial one, owing to the 
looseness with w T hich the word nature has been used, 
applying it in different meanings to plants, animals, &,c. or 
to the character essential to them, or again to man differ- 
ing by his reason from them. The next erroneous step 
was that, since the civilised state of man was consid- 
ered an artificial one, all rights which were gradually 
unfolded as it were by civilisation, appeared as made 
and not as acknowledged by society. We have a strik- 
ing instance in the right of property. In some limited 
form it was acknowledged at an early period. Gradu- 
ally it became more clearly defined, more distinctly 
recognised in the various spheres of human activity 
and enterprise, spheres to which man could elevate 
himself only by civilisation. The law of individual in- 
heritance has developed itself but very slowly with all 
nations, as the legal history of every civilised nation 
shows, for instance, that of the Romans or Teutonic 
tribes. Yet we find it with every civilised nation, and 
are we not bound on this account alone, even if there 
were not other powerful reasons, to acknowledge it as 
natural to man ? If it is artificial, invented, then, who 
invented it ? Who had or has the gigantic power to 
force all mankind into a course contrary to nature? 



132 The State, [book ii. 

What is there in existence that can long and continually 
remain in a state against its nature ? 

We are surprised at the undefined state of pro- 
perty in those early stages of society, when piracy 
is considered a noble employment, fit to be extolled 
by bards, but we must not forget that there are rights 
of property to this day unacknowledged, which future 
generations will consider as sacred as we do those 
acknowledged centuries ago. Because there was no 
copy-right in early times — because there were no 
books, or books did not yield any profit to make 
copy-right worth anything — it is believed by many 
to this day, that copy -right is an invented thing, 
and held as a grant bestowed by the mere grace and 
pleasure of society; while, on the contrary, the right 
of property in a book seems to be clearer and more 
easily to be deduced from absolute principle, than any 
other. It is the title of actual production and of preoc- 
cupancy. If a canoe is mine because I made it, shall 
not that be mine, which I actually created — a composi- 
tion ? It has been asserted, that the author owes his 
ideas to society, therefore he has no particular right in 
them ? Does the agriculturist not owe his ideas to soci- 
ety, present and past 1 Could he get a price for his 
produce except by society ? But a w r ork of compilation, 
it is objected, is not creation or invention. In the form 
in which it is presented, it is invention. The ideas thus 
connected, though they are, separately, common stock, 
as the wild pigeons flying over my farm, are the compi- 
ler's, are preoccupied by him, and belong to him in their 
present order and arrangement. The chief difficulty has 
arisen from the fact that ideas thus treated, thrown into 
a book, had for a long time no moneyed value to be ex- 



sec. xv.] Copy-right 133 

pressed numerically, and that copy -right has therefore 
not the strength of antiquity on its side. Yet observe 
how matters still stand with regard to this right. Prus- 
sia has passed, only last year (1837), an extensive and 
well-grounded copy -right law (1). In most countries, 
theatres may make whatever money they can by the 
performance of a play, without permission of the inventor, 
that is, they may use my boat to earn as much ferry 
toll as they can. In the United States and in Eng- 
land any man may make an abridgment of the work 
of another, that is, any man has a right to cut the 
ears of my corn, provided he leaves the stalks un- 
touched ; to drink my wine, provided he leaves me the 
casks (2). Those nations who speak the same language, 
as the English and Americans, French and Belgians, 
and several of the German States (with the exception 
of Prussia and probably some others), have not yet in- 
ternational copy -right, though they acknowledge other 
property of each other's citizens. It strikes every one, 
now-a-days, as very barbarous, that in former times, 
commodities belonging to any foreign nation were con- 
sidered as good prize, yet we allow robbing in the shape 
of reprint, to the manifest injury of the author. The 
flour raised in Pennsylvania has full value in Europe, 
and is acknowledged as private property, but the com- 
position of a book, the production of which has cost far 
more pains, is not considered as private property. A 
regular piratical trade is carried on in Austria, and by 
Austria with other countries, in books, published in other 
parts of Germany. It was an ill-chosen expression in 
the British acts relating to copy-right, that they were 
passed for 'the further encouragement of learning.' 
The legislature had, in this case, nothing to do with 



134 The State. [book ii. 

that subject, and sergeant Talfourd, in bringing his new 
bill into the house, justly said, that it was for ■ the fur- 
ther justice to learning.' I do not mean to say that 
perpetual copy-right is absolutely necessary according 
to natural justice. The sovereign action of society can 
regulate the tenure of this species of property as well as 
any other, though the same learned gentleman states that 
'perpetual copy -right was never disputed until literature 
had received a fatal present in the first act of parliament 
on the subject, passed in 1709' (3). It seems very 
clear to me, that the shortest term for which copy-right 
ought to be secured by law, is the life of the author and 
his next heirs, if both are not less than sixty years, the 
average time of two generations ; but I strongly incline 
to believe, that a century would be a proper term, and 
for the benefit both of the community and the author, 
if perpetual copy-right be not adopted, which may offer 
objections, not to be discussed here (4). 

(1) By this law of June 11, 1837, authors of works of litera- 
ture, the sciences and arts, are secured an exclusive privilege of 
publishing, multiplying, and copying them during the term of their 
lives, and the same privilege is extended to their representatives 
for a period of thirty years from the day of their deaths. The 
whole law, altogether well digested, is applicable to works pub- 
lished in a foreign state — in whatever language — in so far as the 
rights established in that state are conferred equally by the laws of 
the said state to works published in Prussia. 

(2) Soon after Mr. Washington Irving had issued his Life of 
Columbus, his publisher was obliged to give notice that the author, 
being informed that some unauthorized person intended to publish 
an abridgment, he himself had engaged in making one. 

(3) Speech of Sergeant Talfourd in the Commons, May 18, 
1837 — able as everything that comes from that distinguished poet 
and lawyer. 

(4) The right of international copyright is considered by some 



sec. xvi.] Agriculture. 135 

with a view to profit only, that is, as it strikes me, in a piratical 
point of view. As it is well to see the arguments on both sides, I 
would refer the student to a publication of Mr. Nicklin, of Phila- 
delphia, against the proposed international copyright between the 
United States and England. 

XVI. Though men, when as yet but hunters, fisher- 
men or nomads, cannot live without some property, the 
first great step takes place, when man passes from the 
hunting or roaming life to that of agriculture. So long 
as there is no individual property among the agricul- 
turists, so long is the ground but poorly tilled. Witness 
some Indian tribes. And so soon as there is a real 
desire to till the ground, so soon does man revolt at the 
idea of laboring for the indolent. If he were forced to 
do it, degradation would be the necessary consequence. 
Who would be on a par with the inert and inefficient 1 
Idleness, with its concomitants, vice and crime, must 
follow. Mr. O'Connell, in his speech already referred 
to, singles out the legal incapacity of holding property 
as one of the two main causes of crime in Ireland (1). 
Let us not be told that we see the contrary in those 
societies already mentioned, the Shakers and that 
founded by Mr. Rapp. They live as a community 
contradistinguished from all who surround them, and 
enjoy the benefit of the general civilisation brought 
about by the division of property, in their whole nation. 
So may a family live very peaceably without ever call- 
ing in the protection of the law, or ever hearing of it, but 
that they can live so quietly, and do live so amicably, 
is nevertheless the effect of law and justice. Without 
property, society would never have risen so high, that 
those communities now may live so peaceably and have 
so civilised intercourse with one another. 



136 The State. [book ii. 

Property now assumes a more striking and a more 
elevated character. The progress of civilisation is inti- 
mately connected with the division of the soil and 
hereditary property, as with agricultural pursuits alto- 
gether. For the other branches of industry cannot be 
cultivated, if man have not previously become a tiller 
of the soil. Civilisation, moreover, requires increased 
population ; and the former likewise promotes the lat- 
ter; but the human species cannot multiply to any 
great extent, except supported by agriculture (2). 
Property, again, must be protected against intruders 
as well as invaders; this, too, leads men to resort to 
mutual support, to live socially united. I speak now 
of a state of mankind, when they have so far increased 
in number, that the mere family tie is not any longer 
sufficiently powerful to make the individuals consider 
themselves as members of one family, when the various 
families have become estranged from each other, owing 
to the extensive number as well as the distance at 
which they must necessarily live from one another. 
Security of property, which includes individual pro- 
perty, is the mainspring of cultivation, as, among 
others, Mr. Henry Carey has abundantly proved in his 
Political Economy. The Hon. Mountstuart Elphin- 
stone gives, on the other hand, on page 334 of his 
Account of the Kingdom of Caubul, London, 1815, the 
description of a peculiar tenure of land, by which it is 
distributed among various tribes every ten years by 
lot — an insecurity leading of course to neglect of cul- 
ture. 

(1) On April 28, 1837, in the British Commons, on the Irish 
Poor-Law Bill. He said : " I need not go far back. It is unne- 



sec. xvi.] Private Property necessary. 137 

cessary for me to go farther back than the last century and a 
half; and, looking at that, no one can be surprised to find 
Ireland in the state that she is in. I allude merely to two 
heads of those which are called the penal laws. By two dis- 
tinct branches of those laws, ignorance was enforced by act of 
parliament and poverty was enacted. Such were the effects 
of the penal laws. It was enacted that no Roman catholic 
should teach or have a school in Ireland. Such instruction 
of youth was prohibited. No Roman catholic could be an 
usher in a protestant school ; it was an offence punishable by 
confinement until banishment. To teach a catholic child was a 
felony punishable by death. The catholics were prohibited from 
being educated. For any child receiving instruction, there was a 
penalty of <£10 a-day, and when the penalty was two or three 
times incurred, then the parties were subjected to a prcsmunire — 
the forfeiture of goods and chattels. To send a child out of Ire- 
land to be educated was a similar offence; to send it subsistence 
from Ireland was subjected to the same forfeiture ; and, what was 
still more violent and unjust, even the child incurred a forfeiture. 
By these laws there was encouragement given to ignorance, and 
a prohibition imposed upon knowledge. I am not now to be 
told that these laws were part of ancient history — they were in 
full force when I was born. Another part of this code of laws 
prohibited the acquisition of property. No Roman catholic 
could acquire property. He might, indeed, acquire it ; but if 
he did so, any protestant had a right to come into a court of 
equity and say, ' Such a man has, I know, purchased an estate — 
such a man is a Roman catholic; give me his estate;' and it 
should be given to him. To take a lease beyond thirty-one years 
was prohibited ; and even if within thirty-one years, and the tenant 
by his industry made the land one third in value above the rent 
he paid for it, it could be transferred to a protestant. These were 
laws that were in force for a full century . For a full century 
we had laws requiring the people to be ignorant, and punishing 
them for being industrious — laws that declared the acquisition 
of property criminal, and subjected it to forfeiture. For one cen- 
tury ignorance and poverty were enacted by law as only fit for 
the Irish people. The consequences of a system of that kind are 
still felt." — The speech contains some very interesting agricul- 
tural statistics comparing Ireland and England. 

vol. r. 18 



138 The State. [book ii. 

(2) Cuvier, Regne Animal, vol. I. p. 78, Paris edit. 1827. The 
ancients were well acquainted with the fact, that the human spe- 
cies does but slowly increase while in a state of barbarism. " As 
it seems to me," says Herodotus, I. 58, " the Pelasgic tribe has 
never become numerous, because it was in a state of barbarism." 
The history of all barbarous nations proves the same. 



(139) 



CHAPTER III. 

Civilisation. — What does it consist of? — Requires Society. — It developes 
Man, is his truly Natural State. — Futile dreams of Innocence and Vir- 
tue without Civilisation. — Shepherds are savage. — Destiny of Woman. 
— High Importance and sacred Character of the Family. — Virtues de- 
veloped by it. — The true Nursery of Patriotism. 

XVII. Men thus led to keep together in families, 
and induced by every farther progress of their species 
to live in society, discover that its importance rises the 
more civilised they become, and, as has been stated, 
man's destiny is civilisation. If we define the latter 
as the cultivation, development and expansion of all our 
powers and endowments, with reference, both as effect 
and as cause, to the social state of man, no one will 
deny, I suppose, the position (1). Man was either 
made to be stationary or for civilisation ; a medium is 
not imaginable. If he was made to remain stationary, 
we ought to know in what stage ? That of the lowest 
barbarism ? If not, then he must be intended for 
movement, and where is this movement to stop ? What 
direction is it to take ? Certainly that of melioration. 

By civilisation man developes his moral, intellectual 
and physical powers, and by civilisation mind becomes 
the more and more master over matter. But civilisa- 
tion cannot be conceived of without society, by which 
I do not mean large congregated masses only, but men 
closely united by a variety of important relations, and 
strongly affecting each other's welfare. ? Magnus fuit, 



140 The State. [book ii. 

qui dissipatos homines congregavit et ad societatem 
vitae convocavit.' (Cic. Tusc. 1, 25). Without society, 
no fellow-feeling, no kindness (2) and sympathy ; 
without society no public opinion, no shame, no virtue, 
no religion ; without society, no impulse for industry, 
no mental development, no intellectual progress from 
generation to generation, no common stock of science, 
no common stock of moral experience, no literature, 
no taste, no music, no fine arts, no exalted love of the 
beautiful, no deep reflection, no refinement ; with- 
out society, no expanded idea of justice and mutual 
respect of rights, property and independence ; no public 
spirit and all that is connected with this elevating qual- 
ity ; without society, no true family life, the source of 
so much that is pure, kindly and great ; without soci- 
ety, no great degree of individual or territorial division 
of labor, no extensive exchange of produce, of customs 
and ideas, no calming and enlarging commerce (3) ; 
without society, no saving of time, no increase of pro- 
ductiveness, no union of labor, of capital, of mind 
and various means, no works to benefit the many, no 
roads, no canals, no insurance against the elements, 
no schools, no protection ; no cultivation to its greatest 
extent, no multiplied and animating enjoyments, no 
raising of the standard of comfort ; without society, 
no great increase of numbers — without society, no hu- 
manity in man. 

Civilisation developes man, and if he is, according 
to his whole character and destiny, made for develop- 
ment, civilisation is his truly natural state, because 
adapted to and effected by his nature. 'Naturaliter 
ergo homo est animal sociabile.' (Egidius de Regimine 
Principum, Venice, 1497, II. 1. c. 1). 



sec. xvn.] Civilisation. 141 

(1) Lieber's Remarks on the Relation between Education and 
Crime, printed by the Philadelphia Prison Society, Philadelphia, 
1835, page 4 &, seq. Whatever definition we may give of civilisa- 
tion, my remarks will apply. We may say, Civilisation of a nation 
is its aggregate manifestation of mind as ruling over matter. We 
call a nation more or less civilised according to the variety and 
the greater or less, deeper or more superficial extent of this man- 
ifestation — to be brief, that nation, I believe, will be called most 
civilised, among which the greatest number of ideas are most 
widely diffused. A nation which has very distinct and widely 
diffused ideas of a proper administration of justice or of technical 
skill, will be called more civilised than one which is wanting in 
these ideas, and less so than one which adds to this stock all the 
ideas of refined taste, in the fine arts, literature, social inter- 
course, &c. I recommend the perusal of the first lecture of Mr. 
Guizot's History of European Civilisation, respecting the meaning 
of the word civilisation. Deserving of attention are the remarks 
of William Humboldt on Civilisation, Culture, and that which, 
higher than both, 'is designated by the German word Bildung, page 
37, of Introduction to the Kawi-Language, &,c, already quoted. 

(2) Man may live in solitude, yet aid effectually in the pro- 
gress of mankind, and feel the liveliest sympathy for its welfare. 
Few more active citizens have ever lived than Fra Paolo Sarpi, 
already mentioned, in his solitary cell, but though in a cell he 
still lived in society, because closely connected with it by his 
books, the active interest he took in the mighty changes of his 
time, in science, religion and politics, and by his intercourse with 
the first men of his state. So does solitude exercise a most power- 
ful effect upon the reflecting mind, both morally and intellectually, 
an effect of its own, not to be supplanted by anything else ; nor 
can we prepare ourselves better for any great event, in which we 
know that we shall have to act an important part, than by retiring 
for a time into solitude. The ancient philosophers, the prophets, 
Christ himself, give the example ; nor will any one who has ever 
tried absolute solitude deny its powerful, salutary and lasting 
effect. This proves, however, nothing against my position. 
Man, in these cases, takes the amount of civilisation, gained by 
society with him and remains united with it, by all the ties of 
intellect. 

(3) Free nations esteem commerce as a public benefit. The 



142 The State. [book ii. 

English, the Venetians, the Americans, the Greek are instances. 
The ZftTtogla or commerce on a large scale was highly valued 
by the Greek, though he undervalued the xdmyXog or shop-keeper. 
We have to imagine the Greek not only as the artist, poet, scholar, 
politician, enthusiastic lover of liberty, but also as the active, 
shrewd and persevering merchant of antiquity. See Heeren's 
different works on the ancient nations. 



XVIII. Civilisation developes man's physical powers 
in various ways. We find, indeed, that the senses of 
savages are peculiarly acute as to some objects, but 
infinitely more developed are the senses of civilised 
man by mechanical trades and other occupations, the 
fine arts, and by many other ways peculiar to civilisa- 
tion. A savage may excel him in one way; in how 
many, however, does he not excel the former ! Civil- 
ised man can undergo far greater fatigues, both purely 
physical and of a mixed character. The North Ameri- 
can Indian can journey longer with his heavy burden 
across the portages than a white man, but how would 
he stand the fatigues of a campaign in Egypt or Russia; 
how would he endure a climate, so unaccustomed to 
him, as the parching rays of the tropic regions, or the 
ice of the pole were to the Humboldts, Parrys, Cailles, 
Rosses, Backs, Clappertons? The muscular strength 
of civilised man has been ascertained to be greater 
than that of uncivilised man, as shown by the dyna- 
mometer, an instrument with a graduated scale for 
measuring muscular • force. The sailors of a British 
ship were able to carry the index some degrees further 
than any of the various tribes of the South Sea islands 
upon whom it was tried. Lastly, it is with advanc- 
ing civilisation that longevity invariably increases, as all 
bills of mortality abundantly prove. 



sec. xix.] Civilisation develops Man. 143 

XIX. The toils and woes of the human species in- 
cident to the frailty of their bodies, ill -guided and jar- 
ring appetites, and misconceived interests, led men at a 
very early time to imagine a period when plenty ren- 
dered labor unnecessary, and universal content pre- 
vented contest and clashing of private interests. Poets 
dwell with satisfaction upon this agreeable dream, 
which gave, at least to the fancy, that for which the 
heart yearned, and to which reality offered so decided 
a contrast. The more degenerate the times, the more 
trouble and misery and vice there was in the world, 
the more vividly was this state of pristine happiness 
depicted, and a Juvenal, before he lashes the depravity 
of the women at his time, first paints the golden age 
(Satire VI). It was forgotten or not distinctly seen 
that man was destined to gain by exertion, to conquer 
all that is necessary for him, that there is no ready- 
made happiness, not even comfort for him. No fur pro- 
tects his body, he has to clothe himself; no shelter is 
made for him, he must learn to build one ; his hand is 
no weapon like the corresponding limbs of many ani- 
mals, he has to invent arms and instruments for it. 
Instead of the many specific physical instincts, with 
which the brute creation has been endowed, he has 
received superior intellect, but this intellect itself has 
first to be developed gradually from generation to 
generation. 

The golden dream of original happiness was coupled 
with another equally erroneous view. Man saw the 
perfect laws of nature on the one hand and the many 
real or supposed imperfections of human institutions on 
the other, degeneracy and enervation, folly and dis- 
content ; it was concluded therefore that all was owing 



144 The State. [book ii. 

to his abandoning or counteracting nature, as if it had 
been the object of the maker of all to place man on a 
par with the brute, or inanimate creation. The fact, 
which could not escape observation, that in many cases 
man had actually left his true nature, came in sup- 
port of this view. Times like those in which Rous- 
seau wrote, when the most burdensome and disfiguring 
dress corresponded to the shorn, crippled and denatur- 
alised parks and gardens, and when vice in the king's 
mistresses was elevated to political rank, established 
almost as a state institution, furnish us easily with a key 
by which we may explain the opening -sentences of 
Emile, his work on education. " All is good," he says, 
" as it comes out of the hands of the author of things : 
everything degenerates in the hands of man. He 
forces one land to nourish the productions of another ; 
one tree to bear the fruits of another; he mixes and 
confounds the climates, the elements, the seasons ; he 
mutilates his dog, his horse, his slave; he overturns 
everything, disfigures all ; he loves deformity, monsters ; 
he wishes nothing to be such as nature has made it, 
not even man ; he must be drilled like a horse in the 
riding-school ; he must be tortured according to fashion, 
like the tree of his garden." (1) Rousseau forgot how- 
ever that it is man too who improves upon unaided 
nature everywhere ; he makes the soil bear hundred- 
fold, he enlarges the fruits, ennobles the stock, saves 
from destruction, unites what was severed, carries the 
blessings and pleasures of one climate to another, (2) 
and renders palatable what was repulsive, harmless what 
was poisonous ; his horse runs more swiftly than the 
wild horse, his mule endures greater fatigue. Where 
is the heavy wheat with bending ear, except on his 



sec. xx.] Civilisation is natural. 145 

cultivated ground ; where the grapes so delicious as those 
of his vineyard ? Where in nature, as it is styled, are 
all the cerealia ? The overcoming of the disadvantages 
and defects of climate is one of the boldest, noblest traits 
of man. 

(1) I am not desirous of mutilating in quoting, and shall add, 
therefore, the passage which explains the view of the author, and 
modifies, in a degree, what the reader may have conceived to be 
the meaning of the above. " Sans cela," adds Rousseau, " tout 
iroit plus mal encore, et notre espece ne veut pas etre faconnee a 
demi. Dans l'etat ou sont desormais les choses, un homme aban- 
donne des sa naissance a lui-meme parmi les autres, seroit le plus 
defigure de tous. Les prejuges, l'autorite, la necessite, l'example, 
toutes les institutions sociales dans lequelles nous nous trouvons 
submerges, etoufferoient en lui la nature et ne mettroient rien 
a la place. Elle y seroit comme un arbrisseau que le hasard fait 
naitre au mileu d'un cbemin, et que les passans font bientot perir 
en le heurtant de toute part et le pliant dans tous les sens." 

It will be seen, however, even from this passage, that Rousseau 
did share with so many other writers of his age, the mistaken 
notion, that man in a state of nature — was as perfect as a tree. 

(2) A simple list of the useful and ornamental plants brought 
to England from the various quarters of the globe, with the time 
when first introduced, such as I have seen in various works, for 
instance, I believe, in Loudon's Encyclopaedia of Gardening, and 
in one of the companions to the British Almanac, is well worth 
a moment's reflection. To how incalculable a degree has not 
comfort, health, enjoyment, delight, refinement, nay, life itself, 
been increased in England from the first rye and wheat which 
was carried across the channel to the last tree imported from 
New Holland, by the * forcing of one land to bear the productions 
of another,' as Rousseau calls it. Imagine Europe without this 
boukversement, in ancient Celtic simplicity ! 

XX. Trees, rocks and rivers once being considered 
in a state of nature, and civilised man not, nothing was 
clearer than that the savage man was believed more 

VOL. I. 19 



146 The State. [book if. 

natural, and, consequently, by some, less depraved than 
the civilised. Some of the acutest philosophers, as 
Hobbes, speak of the savage as man in a state of na- 
ture, from which it necessarily follows, that they con- 
ceived civilised man as being in an artificial — a made 
state. In fact, he and so many others with him, were 
partly induced to consider the savage in a state, of 
nature because government, the state, appeared to him as 
something made, agreed upon. If so, it was clear that 
some state of things must have existed before the state 
was made, and this state of things might, if such had 
ever been the case, be called a state of nature. 

It would be difficult indeed to settle, what, according 
to those philosophers, is the precise state of nature. 
Does man live in it only for one moment after his crea- 
tion ? Or does the tattoed savage, who beautifies, as 
he supposes, the body of his child with a variety of arti- 
ficial and tormenting means, live still in a state of na- 
ture ? Or is that a state of nature when men live with- 
out any sort of authority ? If so, then he cannot be 
found anywhere in a state of nature. Or is that the 
state of nature, when small hordes pursue each other, 
or when they live peaceably together ? We find these 
uncivilised tribes in all these conditions and relations to 
one another. Why is war a state of nature and not 
peace ? Many of the rudest tribes disfigure their bodies 
far more extravagantly than any courtier of Louis XIV 
or Charles II did, by his periwig and hair-powder? 
Why is the savage more natural? 

But we have to ask what is, philosophically speaking, 
the true state of nature of any being or thing ? Doubt- 
less that in which it fulfils most completely that end 
and object for which it is made according to its organi- 



sec. xxi.] Savage state not natural 147 

sation, and the principles of its vitality — the fundamental 
law of its life and being. A dwarfish pine tree on the 
high Alps, near the confines of perpetual snow, would, 
in its crippled state, certainly not be considered in a 
natural state ; nor would a plant be called of natural 
growth, if a too luxuriant soil has given it precocious 
exuberance, of which a deranged organism and early 
decay must be the consequence. Neither the haggard 
look of hunger, nor the flush of fever is natural. Man, 
with his expansive faculties, progressive capacities and 
moral endowments, capable of cultivation and requiring 
it ; man, who has received an unprotected body indeed, 
but one which adapts itself to all varieties of climes, 
which is able to carry him through various stages of 
social progress, and is by its fine organisation adapted 
to his moral and intellectual destiny, is not in a state of 
nature, when •all that characterises him as man, and dis- 
tinguishes him from the brute, is stinted and stifled by 
a life of savageness. Man was essentially made for 
progressive civilisation, and this, therefore, is his natural 
state. 

XXI. The reports of travellers, on the moral state of 
man in the presumed state of nature, corroborate what 
I maintain. The inhabitants of Lord North's island are 
probably as unconnected with any other portion of the 
human family, as we can imagine any community to be, 
and now contrast Holden's Narrative of a Shipwreck on 
the Pelew Islands (1) with the presumed primitive ex- 
cellence of man in a state of nature, severed from civili- 
sation. Their mind so contracted that they would not 
use the fish-hooks, offered by the wrecked sailors, 
though they acknowledged them to be much superior 



148 The State. [book 11. 

to their own, made of turtle shell, because Yarris, their 
god, would be angry at their abandoning the old-fash- 
ioned hook (in which particular, however, it must be 
owned, they substantially resemble many white and re- 
fined people) ; their disposition cruel, their habits indo- 
lent; their sense of right and wrong, and of decency, 
hardly awakened ; improvident in the highest degree. 
Or ponder on such occurrences as captain Back relates 
in his Narrative of the Arctic Land Expedition in 1833- 
1835, of the Cree Indian named Pepper (p. 175, in the 
American edition). They, at least, do not exhibit any 
inviting picture of the harmless state among the uncivil- 
ised. Nothing can bridle man's passions, and the undue 
action of the necessary primary agents of the human 
soul, but civilisation, society, and that which can be cul- 
tivated in it alone in any high degree, knowledge and 
religion. Religion belongs to civilisation. It is true 
indeed, that each farther-advanced stage of society 
offers new opportunities for crime. Each new branch 
of industry, new field of activity, increased intercourse 
between man and man offers, of necessity, an additional 
opportunity for offences. Use carries with it the possi- 
bility of abuse, and it thus frequently happens that the 
number of indictable and punishable crimes increases 
with a progress in civilisation, but not necessarily, on 
that account, criminality. The art of writing alone made 
all the crimes of forgery possible — one of the most nu- 
merous offences in highly civilised countries ; an Indian 
in the West cannot commit it (2). The increase of the 
number of laws with the progress of civilisation, pro- 
duced an early belief that increased immorality and 
criminality were the cause. But it is not so, notwith- 
standing the high authorities to the contrary. " Many 



sec. xxi.] Laws cannot but increase. 149 

men marvel," says lord Coke, " the reason that so many 
acts and statutes are daily made ; this verse answereth : 

Quseritur ut crescunt tot magna volumina legis, 
In promptu causa est ; crescit in orbe dolus." 

(Twyne's case, Coke's Reports, iii. 80). So says Taci- 
tus: Corruptissima republica plurimae leges (Ann. iii. 
27). I do not say, that laws are not multiplied by 
corruption, but civilisation must increase their num- 
ber though corruption may diminish. It necessarily 
multiplies men's relations, because it develops their ac- 
tivity, and each new relation draws after it new laws to 
protect or regulate it. Each year brings forth, at pres- 
ent, many new laws, while the middle ages had com- 
paratively few, and will it be maintained that immorality 
is now greater ? Works, like Wachsmuth's Moral His- 
tory of Europe — a very extensive work — or Chateau- 
briand's Etudes Historiques, will convince us at once of 
the contrary (3). The number of the boxes in the 
apothecary's shop has increased ; the variety of diseases 
is probably increasing with civilisation, but not so mor- 
tality ; mortality decreases with civilisation. The variety 
of offences increases, but not criminality. There are 
besides many other reasons why the number of laws 
should increase. They are not collected, classed and 
condensed, that is, codified at the proper time. Sir 
Francis Bacon, and chief justice Hale (see his preface to 
Rolle's Abridgment), proposed and urged already codi- 
fication. Another reason is, that whatever people have 
a right to do, they will do too much of, if it involves some 
sort of privilege. The legislator likes to legislate ; so do 
those who have a right to speak, lawyers, legislators, 
ministers, speak too much. Luther found it necessary to 



150 The State. [book ii. 

enumerate among the nine ' qualities and virtues of a 
good preacher,' as the sixth, that he ought to know when 
to stop (vol. xxii. p. 991). It is vain, however, to hope 
that the laws of a civilised nation can possibly be reduced 
to a few principles. They would produce incalculable 
litigation. Still it is true, on the other hand, that civilisa- 
tion tends likewise to simplification, to a classification of 
what before was a mere mass without order — in common 
machinery as well as in scientific or political matters. 

(1) Boston, 1836. 

( w 2) I have given my views on this subject in the Remarks on 
the Relation between Education and Crime, already quoted. 

(3) The many tables of moral statistics, drawn up from official 
documents, which have of late been published, are not discourag- 
ing. 

XXII. My remarks do not only apply to the differ- 
ence between civilised and uncivilised tribes ; they hold 
good in other respects. The innocence of shepherds 
has been a frequent theme of former poets, so much so, 
that pastoral poetry forms an important class in the lite- 
rature of many nations. Lambs are innocent; but 
shepherds are not lambs. The ideas of rural simplicity 
and happiness, associated with Arcadia, are of a purely 
poetic origin. Shepherds, where they form a class, un- 
connected with society, are generally ferocious men, 
given to violence and brutality, and very frequently, 
either in connexion with robbers, or robbers them- 
selves. I found the Greek shepherds, a rude and wild 
race, described to me as dangerous people ; the Ital- 
ian shepherds or herdsmen form a part of the worst 
population ; the herdsmen of Hungary are a rude and 
little restrained race. What sort of men, in a moral 
point of view, the Spanish shepherds are, who traverse 



sec. xxn.] Pastoral Life. 151 

the country with their merino flocks, I do not know ; but 
we all know against how many revolting crimes Moses 
found himself obliged to provide by his laws. The 
Jews were then a nomadic tribe ; the Bashkeers, like- 
wise nomadic people, tributary to the crown of Russia, 
and who followed the army against the French in the 
year 1813, were so rude that they could not be billeted 
in the houses of cities, but had to bivouac in the cpen 
squares. And yet does a man who spends his whole life 
on the back of his horse, and drives his camels from one 
steppe to another, not live \ in a natural state? ' In coun- 
tries in which there are many shepherds, yet not form- 
ing a separate class, as in Germany, they are frequently 
distinguished by some peculiar knowledge, for instance, 
of medicinal herbs, but not, that I am aware of, for any 
higher or lower degree of morality. The early founders 
of cities have been justly renowned with all nations. 
Theseus was deified for having, among other deeds, 
united the inhabitants of Attica into a city ; and annual 
feasts showed how much importance the Athenians 
attached to this step in the civilisation of their chosen 
peninsula. The German emperor Henry, the City- 
Builder, is ranked among the greatest benefactors of 
Germany (1). 

(1) Our languages, likewise, testify against the poets. Villain 
from villanus, which signified in Low-Latin a villager; and though 
it might be objected that the present meaning of villain is attached 
to the word owing to its having meant originally a bondsman, a 
vile fellow, there are other languages which involve the same idea. 
Dorperheid, from dorp, the Dutch and old English for village, 
so that the word literally translated would be dorpishness, signi- 
fied in the 17th century (the word is not any longer much in use) 
in Dutch, vileness, villany. I do not mean to intimate that the 
rural population in our times forms the focus of crime and worth- 



152 The State. [book ii. 

lessness. Far be it. Criminal statistics show that in most civil- 
ised countries the agricultural districts are less productive of crime 
than others. The reason is because the latter are generally of a 
manufacturing character ; and manufactures, together with other 
circumstances, existing in many countries, furnish an abundance 
of crimes. This last remark does not apply to the United States; 
but the works of Guerry, Dupin, Julius and other statistical writers 
on criminal matters, show this relation to exist pretty generally 
in Europe. I merely intended to show that the languages indi- 
cate that civilisation and morality do not necessarily go hand in 
hand with a separation from society, and that both are originally 
the fruits of a life as existing in larger communities. 

XXIII. The family, so important an agent in leading 
man to society, to civilisation, obtains a higher im- 
portance with every progress which society makes in 
civilisation ; for the family is natural to man, and all that 
is natural to him, that is essentially human, is more 
clearly developed with each advancing movement in 
civilisation. With the higher importance of the family 
the woman likewise approaches that true position for 
which she is calculated. This higher importance of the 
family, and in it of the woman as wife and mother, is 
not only a general one by way of influence upon 
society, but it is more distinctly manifested and ac- 
knowledged by specific laws, which pronounce the 
sacredness of matrimony, secure the rights of the 
woman in her capacity as wife, mother, or in her single 
state, by the laws of inheritance, by securing the rights 
and protection of children in infancy, by providing that, 
relations in ascending or descending line are not bound 
to inform against one another, (1) that escapes favored 
by relations shall not be punished, &,c. (2). 

Woman has received, in the great order of things, a 
different physiologic organisation and mental bias from 



sec. xxiii.] Woman. 153 

those of man. The creator has directed her to receive 
her impressions more through the channel of feeling; 
she has been endowed with a more tender sensibility ; 
man has to rely more upon reflection. Her consequent 
position in the state, and natural sphere of action will 
be treated of in a subsequent part of the work. Suffice 
it here to say that she steps beyond her proper circle 
of activity, which is emphatically that of the family, 
through which nevertheless she becomes a most essen- 
tial ingredient of the state, if she abandons the sphere 
of tender sentiment, of affection, peace and love. And 
as nowhere the essential order of things can be violated 
without incurring great danger, so does the Avoman ex- 
pose her morality and whole true character, and, there- 
fore, society, to danger, the moment she interferes with 
politics. " When a woman gives her mind to politics, 
she becomes best acquainted with what is least respect- 
able in them — their personalities " (3). 

On the other hand, we find her in a deplorable con- 
dition before she has been raised by some degree of 
civilisation. Ledyard and Mungo Park received kind 
attentions at their hands, while we find in Holden's 
Narrative, cited already twice, the following passage on 
page 93: "And what may be regarded as remarkable, 
the female portion of the inhabitants (of Lord North's 
Island) outstrip the men in cruelty and savage depravity, 
so much so, that we were frequently indebted to the 
tender mercies of the men for escapes from death at the 
hands of the women " (4). 

(1) Kinsmen in the ascending or descending line, sisters and 
brothers, husband and wife and those related by marriage in the 
first degree, are not bound to inform against one another, nor are 

vol. i. 20 



154 The State. [book ii. 

they bound to such preventive actions which would necessarily 
lead to such information. Bavarian Penal Code, article 79. But 
ascending kinsmen, husbands, are bound to endeavor to prevent 
the crime, or they are punishable. The explanation of this law, 
in the Notes to the Penal Code, vol. I. p. 212, speaks of the 
sacredness of the ties of blood, which the state shall not tear 
asunder. 

(2) The Proposition of a Penal Code for the kingdom of Wur- 
temberg, Stuttgard, 1835, declares relations in a still more remote 
degree, free from penalty, if they personally protect the criminal, 
without of course injuring others, or interfering with public au- 
thority. See article 86. 

The proposition of a Penal Code for the kingdom of Norway, 
Christiania, 1835, declares the same free from penalty if they hide 
or assist a criminal to escape. See article 10. 

See the Motives published with both these Propositions, which 
by this time may have become the law of the land. 

It is curious that the Chinese penal code, throughout of a se- 
vere character, still holds relations who assist a criminal, free 
from guilt. The great reverence inculcated by the Chinese to- 
ward parents was undoubtedly one of the motives. The code 
decrees, " All relations connected in the first and second degree, 
and living under the same roof, maternal grand-parents and their 
grandchildren, fathers and mothers-in-law, sons and daughters-in- 
law, grandchildren's wives, husbands, brothers and brothers' wives, 
when mutually assisting each other, and concealing the offences, 
one of another, and moreover, slaves and hired servants, assisting 
their masters and concealing their offences, shall not in any such 
case be punishable for so doing." More distant relations are pun- 
ished more severely, according to the more remote degree of rela- 
tionship. Ta Tsing Leu Lee, Penal Code of China, translated 
from the Chinese by sir George T. Staunton ; London, 1810, 4to. 
p. 34 & seq. 

(3) Taylor's Statesman, London, 1836, page 72. 

(4) The great depth of immorality to which a woman is much 
more apt to sink at once by crime, and how exceedingly difficult 
it becomes to reclaim female offenders, has been treated in the 
Introduction to Lieber's Translation of the Penitentiary System 
in the United States, by Messrs. de Beaumont and de Tocqueville. 
Philadelphia, 1833, page xiii. & seq. 



sec. xxiv.] Monogamy. 155 

XXIV. The family cannot exist without marriage, nor 
can it develop its highest importance, it would seem, 
without monogamy. Civilisation, in its highest state, 
requires it as well as the natural organisation and wants 
of man. Cuvier, in his repeatedly quoted Animal King- 
dom (vol. i. page 76 & 77), says, " The number of 
individuals of either sex being nearly equal, and the diffi- 
culty of nourishing more than one wife when riches do 
not supply physical strength, show that monogamy is 
that sort of connexion which is natural to our species, 
and also since with all those animals with whom this 
species of union exists, the father takes part in the rear- 
ing of the child." Where polygamy is lawful few avail 
themselves of this permission, simply because the sup- 
port of several wives with their offspring requires means 
beyond the reach of far the greater majority of people. 
On the other hand, it will generally be found that those 
who can support several wives, select one in particular 
who is preeminently considered the companion to the 
master of the house. In many cases she is distin- 
guished by a peculiar title. The Greeks mentioned it 
as an important step in civilising their country, that 
Cecrops established monogamy. They knew monog- 
amy only (1); so did the Romans. They held this 
most elementary of all institutions, and first requisite of 
civilisation in high honor, until the period of universal 
degeneracy under the emperors, and then even did the 
imperial laws evince, that marriage, viewed with regard 
to the merest political utility, is of essential importance ; 
as likewise late statistical accounts seem satisfactorily to 
prove that concubinage extends its enervation to the 
offspring (2). Cato, the censor, said, according to Plu- 
tarch, that he considered an honest husband higher 



1.56 The State. [book ii. 

than a great senator, and Ulysses, returning from war 
and glory, wishes kind Nausicaa, for all her humanity 
shown him, a husband and a house. " May the gods 
grant thee all thy heart desires, a husband and a house ; 
and bless you with peace and concord. Happy ones ! 
Nothing, in truth, is so desirable and rejoicing, as when 
husband and wife, united in faithful love, administer 
quietly their house — a bitter sight to the enemy, but 
delight to the friend, and still more themselves enjoy!" 
(Odyssy 6, 180 & seq.) 

(1) The tales of the bigamy of Socrates and Euripides have 
long been disproved. Two cases only form an exception, that of 
Anaxandridas in Sparta, obliged to take a second wife on political 
grounds (Herod. 5, 40), and of Dionysius the Elder, of Syracuse 
(Diod. 14,44). 

(2) See chap. 3d of the first book of Quetelet's sur PHomme et 
le Development de ses Facultes. Paris, 1835). 

XXV. It is in the family, between parents and child- 
ren, and sisters and brothers, that those strong sympa- 
thies and deep-rooted affections grow up, which be- 
come the vital spark of so many good actions, which are 
the medium through which we view other and vaster 
spheres with purer, intenser feelings, and which sur- 
vive those blasts of later life which would fain chill most 
hearts into cold egotism. With them is mingled and a 
thousandfold entwined all that attachment which ex- 
pands into patriotism — that warm devotion to our coun- 
try which loves to dwell in every noble heart, and with- 
out which no free state can long exist. The love of our 
parents, of our children, of our brothers and sisters, makes 
patriotism a thrilling reality. Why is it, otherwise, an 
expression which goes through all centuries, and appeals 
directly to every soul to fight for our hearths? Why 



sec. xxv.] Patriotism. 157 

has the word hearth been chosen for country 1 Be- 
cause there we see it most clearly, feel it most deeply. 
Return from an arduous war, from a long absence and 
see the first high mountains of your country ; it is a 
happy feeling indeed, but it is more thrilling still when 
you see the stile which leads to your father's meadow. 
Why does the word home speak so directly to our 
heart ? Because the home contains what is choicest for 
us in the country. How full of meaning are the words 
1 bound home,' when they sound from a vessel which 
you pass, yourself sailing to distant climes. 

Leonidas when he prepared himself for his heroic sac- 
rifice, and selected those who were honored to die with 
him, chose men of a mature age and who had children. 
The sight of Rome could not melt the stern heart of 
Coriolanus ; his wife and mother could. When a hero, 
with encircled brow, has passed through the crowded 
streets, and has received the thanks of his country in 
the capitol, and his heart is big with glory and throbs 
with joy, he hastens home to drink the joy of joys, in 
the arms of his wife and his parents. When he is 
doomed to die a martyr to his country, as Padilla, Eg- 
mont or Barneveldt, his last words are directed to his 
wife, to his children, to his family. These ties, indeed, 
must be severed, when the alternative is between family 
and country ; so must at times the love of country yield, 
when the alternative is between it and the love of man- 
kind. (See Patriotism). When Timoleon saw he could 
not prevail on his brother Timophanes, to desist from 
his tyrannical course of usurpation, the faithful lover of 
liberty conspired even against him, but still " Timoleon 
stepped aside, and stood weeping, with his face covered, 
while the other two drew their swords " and slew the 



158 The State. [book \u 

tyrant. When Arnold Winkelried, in the battle at 
Sempach, saw that his countrymen could not advance 
against the dense wall of Austrian lances, he stepped 
forward and said, " Dear confederates, I'll break a path 
for you ; think of my wife and dearest children," and 
buried in his breast, as many lances, as he could clasp, 
and tore them down with him. But who can say 
how much at that very moment the thought urged him 
that he would purchase liberty with his blood for the 
land of his very children ? 

XXVI. The family is the focus of patriotism. Public 
spirit, patriotism, devotion to our country, are nurtured 
by family ties, by the attachment to our community, the 
interest in our county, the associations with our district, 
our province, as the love of our own country enables us 
best to understand the deeds of other nations. We 
have little regard for a man who loves his country in 
general, in the abstract, and does not take an interest 
in the improvement or embellishment of his own place. 
A man who does not love his hamlet, will not die 
for his country, still less live, labor, toil for his nation. 
We shall presently see how mistaken those are, who 
believe that the state is nothing but an association 
founded upon material interest, and not a society of 
closely united men. If they were right, the state 
might dispense with public spirit, but it cannot. Where 
public spirit has departed, the commonwealth is cor- 
rupt ; but public spirit is generated first in the family, 
for through it we are in a visible and tangible way con- 
nected with, what otherwise would remain for most 
men a bare abstract idea, unable to animate, raise, 
inspire, to cheer on, and prepare for sacrifices. The 



sec. xxvu.] Importance of the Family. 159 

members of a state are not wheels of clock-work, 
working, indeed, with each other, but not feeling for 
one another. Let sympathy and disinterested affection 
come whence it may, so that we have it — a refreshing 
dew upon the arid fields of practical life. 

XXVII. The Jesuits condemn the love of our kins- 
men as a carnal inclination (1), and they praise a mem- 
ber of their society for having so entirely conquered his 
feelings, that he could quietly pass his native place after 
a long absence and in spite of the strongest desire to see 
his relations (2). But so is parental love in its origin, 
carnal ; so is marriage, which we have found to be so 
important an element of civilisation, originally founded in 
the material world. It is a principle in nature, that the 
first impulse is given by the physical world, by relations 
of matter ; but we have to develope, perfect, transform, 
ennoble, spiritualise them. It is a well known fact that 
the vast machinery of industry, so necessary to civilisa- 
tion, is chiefly set in motion by the wants of man to 
satisfy his appetite, far more so than by the want of 
protecting his body, or the necessity of clothing and 
housing. Oest la faim, c'est le petit ventre qui fait 
mouvoir le monde, said Napoleon (Las Cases, vol. V. p. 
32, Paris edit, of 1824). But is, on this account, all 
industry a mere matter of the belly? There are, at 
times, higher considerations than those of our family 
and our country, but take these elements away, and 
you blot out at once a thousand of our noblest emo- 
tions, most effective agents of the moral world and 
surest principles of society. There is much truth in 
the remark of Madame de Stael, that "it is necessary 
to make the choice of our object with enthusiasm (if 



160 The State, [book m 

we only understand this word right), but we must 
march toward it by the aid of character. Thought is 
nothing without enthusiasm, nor action without charac- 
ter. Enthusiasm is everything for literary nations; 
character is everything for acting nations ; free nations 
are in need of one and the other." And what kindles 
this enthusiasm, by which we are to understand an 
inspired attachment to what is good and great, inde- 
pendent of the calculations of interest? Chiefly the 
family and a noble and an inspiring history of our own 
nation. 

If ancient philosophers maintain that, according to 
the example of the Lacedaemonians, the family ought 
to be abolished, and even Plato, in his Republic, pro- 
poses to take the new-born babes from the parents of 
the first class of citizens who had been previously 
united by the state, with a view of propagating a sound 
race, it will be easy to understand them after we shall 
have seen the essential difference between the views 
which the ancients took of the state and its object, and 
those of modern times. When, however, modern wri- 
ters propose a similar annihilation of the family, as some 
actually have done, it only shows that they have no 
correct views of man's individual value, of the family, 
and of what they ought to be in modern times, or that 
they have proposed a false remedy for the existing evils 
in private education. 

(1) Sumrnarium Constitutionum § 8 in the Corpus Institutorum 
Societatis Jesu, Antwerpipe, 1709, T. 1. 

(2) Orlandinus, III. 66, mentions the case. The Jesuit's name 
was Faber. 

(3) De l'AUemagne par Mme. de Stael-Holstein. Paris, 1810, 
tome 6, p. 90. 



(161) 



CHAPTER IV. 

"What is the State ? — By what Characteristics does it differ from the 
Family? — The State a Society. — Various Human Societies, according 
to the various Relations. — Relations of Consanguinity, Exchange, 
Comity, Intellectual Communion, of Right. — What is Right ? — The 
State is the Society of Right. — The Just is its Fundamental Idea. — Ob- 
jects of the State. — What is Protection ? — The State requires General 
Rules; its Members are not absorbed by it; every one has Claims 
upon it; it is a Moral Society; it exists of Necessity. — The State 
remains a Means. — The Individual above the State ; the State above 
the Individual. — The State, as such, has Rights and Obligations ; the 
State does not make Rights, but acknowledges them. — Civilised States 
far the most powerful. — Man by Nature a Political Being. — Man 
never exists without the State. — The State is no Insurance Company. 
— Protection of Life and Property not the only Objects, nor the highest. 

XXVIII. The family, however important, is not a 
sufficiently extended society to lead man to his great 
destiny — to civilisation. Men must live in wider unions, 
they have to establish relations and to develop ideas, 
which can never be fully obtained in the family alone. 
A union of a different character is required — it is called 
the State. The prevailing idea in the family, that de- 
termines the character of the intercourse between the 
members, is mutual attachment depending on personal 
relations, to which man is first induced by the ties of 
consanguinity, on kindness and forbearance, on a degree 
of disregard of one's own personal considerations. That 
which renders the family so admirable, so holy, is love, 
and a continued forgetfulness of a separate individual 
interest. The fundamental idea of the state, on the 
other hand, is justice, the right which exists between 

VOL. I. 21 



162 The State. [book ii. 

man and man. That which renders the state so great 
and important is, that it maintains right, protects, and is 
a continual guard over the individual right of every one ; 
that it demands of no member an obligation on his side 
alone, but knows of mutual obligations only. There 
shall be no duty in the state, for the performance of 
which the citizen does not receive an equivalent. 
Family and state then do not only differ as to size, but 
they differ in their characteristics and essentials, what- 
ever confusion to the contrary may in many parts of the 
world exist. The monarch is frequently represented as 
the father of his subjects ; and this misrepresentation 
alone has caused mankind to pass through infinite 
suffering. In few instances has the danger of analogy 
shown itself more banefully than in this. It has induced 
people to establish claims, or to submit to them, which 
are calculated to throw society into disorder, and to lead 
it to those disastrous consequences which never fail to 
be the effect of mistaken notions respecting elementary 
principles of society. Still I do not mean to say, that 
in the course of civilization stages were not necessary 
in which the ideas of family and state were yet closely 
interwoven with one another, had not yet distinctly 
presented themselves to the human mind, and were 
mixed up in the patriarch, nor that the state in many 
instances actually did not grow out of the family. The 
Asiatic nations prove this fact. The family grows into 
a tribe, the tribes into a nation (1) ; and even with those 
nations and states which originated from a fusion of 
many discordant elements, as the noble people of Attica 
out of the mixture of Pelasgi, Thracians, Achaeans and 
Ionians, and the British nation out of Britons, Romans, 
Saxons, Danes and Normans, the state grew originally 



sec. xxix.] Various Societies. 163 

out of the family, in as far as the idea of justice grew 
with its enlargement ; but everything, every institution, 
every art, every science begins in an undefined state, 
mixed up with others, and is more distinctly developed 
only with the progress of civilisation. Physics, architec- 
ture, and the ministry are, at present, questionless three 
very distinct employments, though originally all three 
were united and undistinguished from one another in 
the priest. Painting and writing were first the same 
thing, they are now essentially different things. 

(1) I know of no more striking instance of divisions and 
subdivisions according to family relationship, and a government 
founded upon it, than the one described by the Hon. Mountstuart 
Elphinstone, in his Account of the Kingdom of Caubal, &c. Lon- 
don, 1815, Chap. ii. p. 158 & seq. Mr. Elphinstone was sent as 
envoy to the king of Caubal. The work is valuable in many 
respects. 

XXIX. Again, what is the state ? All civilised na- 
tions are now agreed, that the state is a society ; no 
man will be so bold as to pretend that an individual, 
a monarch, can be the state, as Louis XIV, when 
a boy, asserted of himself. As to the essential charac- 
ter of the state, however, its true foundation and origin, 
its aim and object, power and extent, people are not 
agreed. Let us see whether it be not possible to arrive 
at a satisfactory answer to so momentous a question. 

The state is a society. What is a society ? A soci- 
ety is a number of individuals, between all of whom 
exists the same relation — the same, as to its principle, 
however modified it may be in other respects, or it is a 
number of individuals who have the same interest, and 
strive unitedly for it. The individuals or members of a 
society exercise, therefore, a more or less intense influ- 



164 The State, [book ii. 

ence upon one another. The catholic church is a soci- 
ety ; between all members, the cardinal and lowest 
layman, exists the relation of religion and the same reli- 
gious discipline. These fundamental relations constitute 
the peculiar character of the society, and are called its ties. 
Societies may be temporary unions with stated objects, 
or they may rest on relations not entirely, or not at all 
controllable by the members — on given relations, with 
general objects chiefly to be learned from the funda- 
mental relations themselves between the members. By 
way of greater distinction, I would call the former 
associations (companies), the latter, by way of excel- 
lence, societies. Insurance companies, charitable soci- 
eties, academies of science, are associations ; nations, 
states, communities, are societies. 

Now, all the relations in which man may be placed, 
are : 

Relations to things, comprehending within this term 
animate and inanimate things. Property, as we have 
seen, rests on one of these relations. 

Relations between man and man. 

Relations between man as the creature, the made 
being, to his creator or maker, or between man as the 
inferior and guided being, to the superior and guiding 
being. All that appertains to these relations is included 
in the comprehensive term of religion. 

The chief relations between man and man seem to 
be these : 

1. The relation of consanguinity. One of the socie- 
ties resting on this relation is the family. 

2. The relation of exchange. Labor must be divided, 
as we have seen, and men stand in constant need of 



sec. xxix.] Relations of Society. 165 

each other according to the individual and territorial 
division of labor. The shoemaker must have bread 
from the baker, the German wants rice from the Caro- 
linian, and sends linen to the South American. Let 
us call this the catallactic or diallactic relation, from 
xavallaooco, or diallaoow, to exchange. Catallactics 
is far the best name which has been proposed for poli- 
tical economy. The name is peculiarly apt, for the 
Greek word does not only mean to exchange, but also 
to exchange hatred, to reconcile, and what reconciles 
man to man, nation to nation, more powerfully and 
originally, than the exchange of their produce? By 
catallactic relation, I understand the exchange of labor, 
produce, service, capital and skill, by way of value, in 
the sense in which it is taken in political economy, not 
the exchange of thoughts, sentiments, discoveries. The 
catallactic relations form one of the original, most endur- 
ing, active and indestructible ties of society, and the 
society founded upon it has, consequently, been mis- 
taken for the state. Plato commits this error, and when 
he supposes that he shows the origin and true charac- 
ter of the state (in the second book of his Republic), 
he only shows the origin of the catallactic society; 
but this society may be narrower or wider than the 
state. Nothing is more* common than that the citi- 
zens on the frontier of one state have a constant catal- 
lactic intercourse with their neighbors of another state, 
and hardly any with their fellow-citizens of the interior. 
That Plato committed this error can easily be accounted 
for. Most Greek states were cities ; they had but one 
word for both ; the idea of a city community was ever 
before his eyes when he reasoned on the state. It is 
very difficult to elevate ourselves above associations 



166 The State. [book ii. 

which have their foundation in everything that sur- 
rounds us. Thus the fact, that in Europe, or on the 
whole earth, there are far more monarchies than repub- 
lics, has, with few exceptions, strongly affected all the 
reasoning of European writers on the state, so decid- 
edly, that the effect extends to their arguments on 
the origin of the state. No one can study Hobbes, 
without perceiving it. Subject and citizen are inad- 
vertently used by many as controvertible terms. Yet 
monarchy, republic, despotism, &c, are but subdivi- 
sions of the same class. 

3. The relation of comity, under which I compre- 
hend all that is called in common parlance, social inter- 
course, with all the views, opinions, enjoyments, preju- 
dices and sufferings connected therewith. 

4. The intellectual relations, to which belong the 
many strong ties which grow out of a constant ex- 
change of thoughts, feelings and taste, as uttered in 
speaking or writing, the strong ties of a common lan- 
guage and literature, of the fine arts, sciences, and 
national custom. The society founded on this relation, 
extends, in Germany, for instance, far beyond the 
states. It is very naturally the strongest of all ties in 
the general course of things. Sometimes peculiar rea- 
sons will make other relations for a time more active. 
A bond which frequently rivals it, is the relation of 
religion ; both strongly affect the inner man — his feel- 
ings and therefore the direction of his thoughts. The 
Belgians felt more sympathy with the French, as long 
as they belonged to the kingdom of the Netherlands, 
than with the Dutch. 



sec. xxx.] Right 167 

5. The relation of right. The society founded upon 
this relation is the state. What is right ? 

XXX. Man, it has been shown, is a moral individ- 
ual, yet bound to live in society. He is a being with 
free agency — freedom of action, but as all his fellow- 
men with whom he lives in contact, are equally beings 
with free agency, each making the same claim of free- 
dom of action, there results from it the necessity, founded 
in reason, i. e. the law, that the use of freedom by one 
rational being must not contradict or counteract the use 
of liberty by another rational being. The relation 
which thus exists between these rational beings, this 
demand of what is just made by each upon each, is 
the relation of right, and the society founded upon this 
basis, which exists because right (jus) in its primordial 
sense exists and ought to exist between men, which 
has to uphold and insist upon it, which has to enforce 
it, since every man has a right to be a man, that is, a 
free-acting or rational being, because he is a man — this 
society is the state. 

Right is that which I claim as just, because necessary 
to me as man, and granted by me to others ; it is the 
condition of men's union, that by which man's individ- 
uality or personality on the one hand, and sociality on 
the other can coexist. This is the most comprehensive 
meaning of the word, and applies to what I have called 
the society of comity as well as to the state. )* We say, 
as to social intercourse, every man has a right to call 
on another. What, then, are the rights, in particular, 
on which the state is built ? Are the relations of social 
intercourse unimportant ? Far from it ; in many cases 
they are of utmost importance to the whole well-being 



168 The Stale, [book ii. 

of man ; and even outweigh the relations of which the 
state takes notice by positive law. A negro may, ac- 
cording to the constitution of some of the United States, 
vote, and is not legally prevented from obtaining any 
the highest office, or from becoming among other 
things teacher in a university ; he has the political right 
or the right guaranteed by the state. Yet there is for 
the present no earthly chance for a colored man to 
become mayor of Boston, because the society of comity 
denies him the right ; the white race feel repugnance 
at close association with him ; the difference of race 
has established in a degree a difference of sympathy. 
Should then not the state enforce this right of the 
negro ? Enforce what ? Oblige whites to invite the 
African ? Would not the whites complain of interfer- 
ence with their right of being perfectly independent at 
home ? And here we have arrived at the proper dis- 
tinction. 

The state is founded on those rights, which are 
essential to all members, and which can be enforced. 
Political enfranchisement was for a long time not as 
important to the Jews in Europe as social enfranchise- 
ment ; in fact, they justly considered the former but as 
the stepping-stone to the latter ; still the latter could be 
made no state relation, it could not be legislated upon. 
Frequently it will happen, that social rights finally be- 
come acknowledged by the state ; so will rights origin- 
ally belonging to catallactic society. We call rights, 
by way of excellence, those rights on which the state is 
founded, or enforcible rights. 

The state then is that society which has to protect 
the free action of every one, as its first basis, and as all 
the other enumerated relations imply action (for with 



sec. xxx.] The State must protect. 169 

the exception of the relation of consanguinity all mani- 
fest themselves in some way or other by action) each 
of these relations becomes likewise a relation of right, 
either claiming to be enforced or to be protected against 
infringement. If a father amuses his children with soap 
bubbles it is an action of a very private character in- 
deed ; yet the moment that another would wilfully inter- 
fere, the state is bound to protect the father. A cat is 
generally speaking a subject of no public interest, but 
actions have been brought and sustained against the 
wilful destroyers of a favorite cat. The exchange of 
my labor or superfluity for other commodities must be 
protected. My fancies, my very follies, if they do not 
interfere with the rights of others must be protected. 
However droll a will may be, if not immoral, it must 
be protected. In this sense the state is the society 
of societies. The state does not beg, invite, request, 
implore — the state demands, it speaks through laws, 
laws which command, that is, which must be obeyed. 
If it were to ask something for the sake of love, or 
good will, of one, it would neglect the other, whose 
right may have been transgressed, or whose right may 
be involved in the execution of the law (1). 



(1) Let us trace out the etymology of so mighty a word as that 
of Right — of weighty import wherever man meets with man, and 
the principle of which has lived in every human breast, however 
successive ages, various tribes and individuals may have differed 
and will for ever differ upon its application. We find the root of 
the word Right in all Teutonic languages and the idioms related 
to them. It may be observed, for those unaccustomed to etymolo- 
gical inquiries, that gh, ch, g, c, Jc, and other gutterals, are con- 
stantly changed for one another. Right is, in German, Recht, both 

vol. i. 22 



170 The State. [book ii. 

as noun substantive and adjective, and everywhere is the idea of 
straight, which word itself is the word right with the intensive 
S connected with it. It cannot be denied that, as naturally 
and unfailingly as the ideas of light and truth are closely associ- 
ated in our mind, so are right or just and straight, straight-forward. 
We find the evidence in the word upright and righteous. The 
French droit, straight and right, the Italian diritto, likewise for 
both, as the Spanish derecho, are all derived from the Latin rectus 
(directus) from regere, connected, as far the greater number of Latin 
words are related to the Teutonic, with rihtan, Swedish rt/Jcta, 
to right, i. e. to judge, which is likewise the original meaning of 
the Latin regere, to judge, that is, to make right, to make con- 
formable to a rule, regula. The German for judging is richten. 
The Latin corrigere, which is but an amplification of regere in 
its original signification of rectifying by rules, and the German 
richtig correct, deserve likewise our attention respecting the asso- 
ciation of straight-ness and cor-rectness. — The Sanscrit for regere 
is raksch, Bopp. Gloss, p. 145 ; riju straight, stretched, which is 
our right, connected with the Teutonic recken, to stretch. In the 
Latin regere, rex, therefore, is the idea of righting, i. e. of dealing 
out justice, the original one, and is it not the essential one too 'r 
What else does the coincidence of our noun rule and our verb 
to rule point at ? 

The Latinjws has a different, yet likewise significant derivation. 
S changes in all languages easily for R, both, in various dialects 
and in the changes of the same word in one and the same dialect, 
as in this case, Nominat. jus, Genitive jur-is. Jur is the root, in 
German Schwur, pronounce Shwur (oathjjwramentum), in Gothic 
svaran or suaran, the Praet. of which is suor, Grimm's German 
Grammar, vol. I. 859, parag. VII ; Anglo-Saxon swerian, English 
swear, German schooren, which meant originally to speak loud, 
strong, to asseverate, from waran to speak, answer, with the inten- 
sive S. From waran is derived word, Germ. Wort, and anticorten 
for answering, as the English answer itself, of which the syllable an 
is to be separated, corresponding to the German ent, the Latin re 
in respondere. Word, swear, waran are connected with the Ger- 
man wahr (pronounce var) the Latin vents, and Gewdhr (the ge 
being the common German augmentum), German for guarantee, 
which itself being etymologically the same with warrant (to and 
gu changing continually, as Wales and Galles, William and Guil- 



sec. xxxi.] The State, a jural Society. 171 

Jaume) belongs to this stock. Jus or jur then is closely connected 
with the ideas of wahr, verus, true, of proving to be true by as- 
severation, loud or public affirmation, swearing, jur-amentum, and 
with the ideas of guarantee, warranted things, rights warranted. 
But the original connexion is undoubtedly, jus that which is Justus, 
which is so nearly connected with the idea of truth. See Adelung, 
ad verb. Recht and Ramshorn, Latin Synonymies, 2 vols. Leipz. 
1833, in German, ad verba Jus, Regere. 



XXXI. The state, I said, is founded on the relations 
of right ; it is a jural (1) society, as a church is a reli- 
gious society, or an insurance company a financial asso- 
ciation. The idea of the just, and the action founded 
upon this idea, called justice, is the broad foundation 
and great object of the state. Bracton (2) says, ' Quia 
a justicia (quasi a quodam fonte) omnia jura emanant, 
et quod vult justicia, idem jus prosequitur: videamus 
ergo quid sit justitia et unde dicatur: Item quid sit jus 
et unde dicatur et quae sunt ejus praecepta.' It is very 
easy to write now-a-days better Latin than this old 
jurist, but not to write better sense than this. Our idea 
of what the state is, is precisely expressed by Cicero 
(de Republ. I. 32), 'Quid enim est civitas nisi juris 
societas ? ' More pithy it has been expressed by Cousin 
(Cours d'hist. de la Philos. Paris, 1828, p. 14), ' La jus- 
tice constitute, e'est Petat.' Of this justice let us adopt 
Ulpian's definition, ' constans et perpetua voluntas suum 
cuique tribuens,' provided we understand by voluntas 
not potentia volendi sed actus, and connect with suum 
cuique not the limited view of property or personal 
safety, but this and much more, namely the great object 
of society, of which more presently. See also the 
interesting account of the jural origin and character of 
the state in Herod. I. 96 & seq. Whether true or 



172 The State. [book it. 

not, it presents the views of the people at that early 
period (3). 

At all times has justice been considered as the main, 
or one of the chief objects of the state, though in many 
instances by justice, nothing more than protection of per- 
son and property, or rather punishment of offenders, was 
understood (4). To protect the widows and orphans 
(that is, the weak) was invariably given as one of the 
chief reasons why power — the sword — had been given 
to monarchs. * The saints have said that the king is 
placed on earth in place of God to fulfil justice and to 
give to every one his right and due (su derecho), and 
as the soul is in the heart and gives it life, so is justice 
in the king,' (5) was the Spanish view at the times 
of Columbus. Every coronation oath, every admoni- 
tion of monarchs points to it from early times. See the 
Civil Law, Luther on the Duties of a Prince in vol. V. 
p. 1041 & seq., and even Timour, while he praises his 
government chiefly for having administered justice and 
supported religion, founds even his right of conquest on 
justice, to expel iniquity, tyranny and oppression (6). 
Hence the early and universal distinction between the 
individual invested with the crown and the regal office 
itself, notwithstanding the extravagant and not unfre- 
quently absurd theories which strive absolutely to con- 
found the person of the king and his office, to the 
contrary. Whatever may be advanced under the hal- 
lucination of divine absolutism, it is impossible to carry 
out the theory, and no principle of government proves 
the distinction more clearly than absolutism itself. Sup- 
pose an absolute king to be attacked by a violent fever ; 
he raves ; the physician orders him to be held, and does 
the very contrary from what the delirious monarch de- 



sec. xxxi.] The Just, the Basis of the State. 173 

mands. Is there in this case no difference between mon- 
arch and crown ? Suppose, farther, the king's disease 
ends in derangement of mind, the successor declares him- 
self or is declared king, or regent, is there no difference 
made between the individual and the crown he person- 
ates 1 Whence is the right derived of superseding the 
unfortunate predecessor? He still exists individually. 
The English made a very early distinction between a 
resolution in the king's breast and a resolution of the 
king in council, or voluntas interna seu naturalis and 
externa seu legalis. (See Hampden's Trial for Ship- 
money, State Trials, vol. III. p. 861). So distinctly 
was the difference acknowledged by the English long- 
ago that, though all justice is administered in the 
monarch's name, his presence at the trial of Earl Straf- 
ford was not considered as official; because 'in his 
presence, by legal construction (by a most philosophic 
view), no judicial act could legally be done.' The 
throne was empty and Charles was in a box with 
trellis-work. But Baillie says that the king broke 
down the screens, so the court sat in the eyes of all ; 
yet they were considered officially absent, 'and the 
lords sat covered.' (Baillie, principal of Glasgow Col- 
lege, was present). The parliament of Paris declared 
in 1648, that the words, sur le bon plaisir du roi (or, 
car tel est notre plaisir), are used to give a degree of 
respect to the government of the king, by no means to 
sanction that which is irrational, or to signify that he 
needs no council. (Portail. 167). And this was under 
Mazarin, immediately after Richelieu's administration. 

(1) If there is no word which distinctly represents our idea, to 
express which we nevertheless consider of much importance, anew 



174 The State. [book ii. 

one must necessarily be made, or we slavishly subject the mind to 
the language, the object to the means. How else is the idea to be 
expressed ? Should I say that the state is a political society ? This 
is nothing but arguing in a circle, which would be at once appa- 
rent had we adopted the Greek for the noun as well as the adjec- 
tive, and were to say, polis is a political society. No doubt it is ; 
so is a cat a feline animal, and sugar a saccharine substance. I 
stood in need of a word which bears the same relation to state, as 
society, that the word religious has to church. The church is a 
religious society. We would express nothing by stating that the 
church, (ecclesia) is an ecclesiastic society. If the word is not 
in good taste, if it does not strike the ear well, I can only say, I 
could find no better one than this, similar to rural from rus. The 
Greek language has no different words for lex and jus, voiios, as 
the English has but law, while the French have droit and lois, 
the Germans Recht and Gesez. The word legal, it will at once be 
seen, signifies something entirely different from jural. Jural rela- 
tions exist before and without laws. The very want of words has 
misled many who have written on the subject ; as if right were 
made by law ; rights, privileges, are, but not right, jus — the 
ccquitas communis, cequum universale. 

I ask permission to quote here an extract from a work of that 
acute reasoner, St. Augustine, being in point as to the subject of 
the above paragraph : 

•' Quapropter nunc est locus, ut quam potero breviter ac dilu- 
cide expediam, quod in secundo hujus operis libro me demonstra- 
turum esse promisi, secundum definitiones, quibus apud Ciceronem 
utitur Scipio in libris de republica, numquam rempublicam fuisse 
Romanam. Breviter enim rempublicam definit esse rem populi. 
Quce definitio si vera est, numquam fuit Romanarespublica; quia 
numquam fuit res populi ; quam definitionem voluit esse reipub- 
licaB. Populum enim esse definivit coetum multitudinis, juris con- 
sensu et utilitatis communione sociatum. Quid autem dicat juris 
consensum, disputando explicat; per hoc ostendens geri sine jus- 
titia non posse rempublicam ; ubi ergo justitia vera non est, nee 
jus potest esse. Quod enim jure fit, profecto juste fit. Quod 
autem fit injuste, nee jure fieri potest. Non enim jura dicenda 
sunt vel putanda iniqua hominum constituta; cum illud etiam ipsi 
jus esse dicant, quod de justitiae fonte manaverit; falsumque esse 
quod a quibusdam non recte sentientibus dici solet, id esse jus, 



sec. xxxi.] The Just, the Basis of the State. 175 

quod ei qui plus potest, utile est. Quocirca ubi non est vera jus- 
titia, juris consensu societas coetus hominum non potest esse ; et 
ideo nee populus, juxta illam Scipionis vel Ciceronis definitionem, 
et si non populus, nee res populi ; sed qualiscumque multitudinis, 
quae populi nomine digna non est. Ac per hoc si respublica res 
populi est, et populus non est qui consensu non sociatus est juris, 
non est autem jus, ubi nulla justitia est ; procul dubio colligitur, 
ubi justitia non est, non esse rempublicam. Justitia porro ea 
virtus est quae sua cuique distribuit. Quae igitur justitia est homi- 
nis, quae ipsum hominem Deo vero tollit et immundis dsemonibus 
subdit ? Hoccine est sua cuique distribuere ? An qui fundum 
aufert ei a quo emptus est, et tradit ei qui nihil in eo habet juris, 
injustus est ; et qui se ipsum aufert dominanti Deo, a quo factus 
est : et malignis servit spiritibus Justus est." De Civitate Dei lib. 
xix. xxi. 1. 

(2) Henry Bracton, who lived in the 13th century, De Legibus 
et Consuetudinibus Angliae, lib. iv. c. 4. 

(3) I will transcribe the translation of this very curious pas- 
sage : " There was a man among the Medes of the name of Dei- 
oces, son of Fraortes, of great wisdom, who longed for power, and 
he acted thus : The Medes lived about in their hamlets, and as 
he enjoyed already great reputation in his own, he practised jus- 
tice still more attentively and zealously. And this he did, because 
lawlessness was great throughout Media, and he knew well how 
the just hated injustice. And the Medes of his place, as they saw 
how he did, made him their judge, and because his eyes were di- 
rected to the supreme place, he acted fairly and justly, by which he 
gained no little praise with his fellow-citizens, so that those who 
lived in the other hamlets, when they learned how Deioces judged 
according to justice only, since themselves had suffered already 
by unjust sentences, when they heard of this, they went with plea- 
sure to Deioces, that he might give judgment to them too, and at 
length they went to no one else any longer. But when the num- 
ber of those who repaired to him, went on increasing, because 
they perceived that his sentences were always according to wis- 
dom, and Deioces saw, that everything depended upon him, he 
declined any longer to sit in judgment, and spake, he would not 
any longer be judge ; for he had no leisure to decide cases for 
others every day and thus to neglect his own affairs. When after 
this, violence and lawlessness in the places about became worse 



176 The State. [book ii. 

than before, the Medes assembled, and held council with one 
another, and consulted on their situation. The friends of Deioces 
may, as it seems to me, have spoken thus : " If things remain, 
as they are now, we cannot dwell any longer in our land. Up, 
then ! let us elect a king, and our land will be ruled according to 
right, and we may g6 to our work, and we need not leave our 
country on account of lawlessness." Thus they spake, and per- 
suaded the Medes, that they elected themselves a king. And 
soon they consulted, whom they would place above themselves as 
king, and Deioces was proposed on all hands, and much praised, 
until at length they unanimously resolved, he should be their 
king." 

(4) It is interesting, on this account, among so many others, to 
read large and contiguous collections of the charters, compacts, 
&c. of a nation such as, Recueil General des Anciennes Lois 
Francais depuis l'an 420 jusqu' a la Revolution de 1789, by 
Decrusy, Isambert, and Jourdan, Paris. 

(5) This passage is contained in the appointment of Columbus 
as admiral of the Indies, to be found in the Codice Diplomatico 
Colombo-Americano ossia Racolta di Documenti originali e ine- 
diti spettanti a Cristofero Colombo alia Scoperta ed al governo 
dell' America, Genova 1823, 4to, page 47 and 63. 

(6) Institutes, political and military, written originally in the 
Mogul Language by the Great Timour, first translated into Persian 
&,c. and thence into English by Major Davy, Persian Secretary to 
the Commander-in-Chief of the Bengal forces. Oxford, 1783, 
4to, page 331. 



XXXII. All relations existing in the state, or, all 
strictly political relations are relations of right — jural 
relations. The individual demands of the state that his 
right — his jural relation to others be maintained invio- 
late, and the state demands that the individual do not 
interfere with the right of others, or, in other words, do 
not disturb their jural relations. Finally, the individual, 
being unable to obtain those ends for which he was 
placed on earth or made a man, in a state of insulation, 



sec. xxxn.] What Protection is. 177 

but who shall and must, of necessity founded in his 
very nature, live in society, it is matter of right that he 
obtain through and conjointly with society, what he 
cannot obtain singly, and what, nevertheless, is essential 
to his well-being as man. The state, therefore, has 
the right and the duty to obtain all these ends by the 
combined energy of society for each individual. We 
see thus that protection in its wide and true meaning, 
not in its narrow sense, signifying nothing more than a 
prevention of individual injury — that protection is the 
aim and object of the state, and this protection is but 
another word for justice, in its broad adaptation, the 
obtaining and granting of that which every one de- 
mands of right, and as moral individual ought to de- 
mand — his due. We find thus that protection in- 
cludes : 

1. Individual security, which demands two things: 

a. Protection against individual injury, or interference 
with me and my actions individually, that is, protection 
of life, limb, labor, property (which includes the owning 
of things and the acquiring of things, or use and ap- 
propriation of things unappropriated, and exchange), 
utterance or converse (speech and writing), honor (or 
reputation), virtue, religion and family relations. 

b. Making certain that which is uncertain; for un- 
certainty in matters of right is insecurity. 

2. Social security, the protection of society as such. 

3. The protection of each member as that being who 
cannot otherwise but obtain conjointly with others, or 
through and in society his great ends of humanity — 
those ends which are necessary, and yet cannot be ob- 
tained singly. 

vol. i. 23 



178 The State. [book ii. 

XXXIII. Every man is a being who has a moral 
character of his own, he cannot divest himself of indi- 
viduality, and yet he is what he ought to be in society 
only. These three points are of fundamental impor- 
tance in the state. If men have to live together, and 
yet must remain individuals, with individual pursuits, 
individual objects, individual desires and appetites, it 
follows that, 

1. They must closely unite to obtain those objects, 
which are of equal importance to all. 

2. That they must follow certain rules important for 
all, without which their individual interests must con- 
tinually clash with one another, and society would be- 
come a far worse state than perfect insulation. Indeed, 
it is impossible to imagine any number of individuals 
living together without observing certain rules, nor do 
we ever find any such society, for whatever purpose its 
members may have united. This necessity of observe 
ing certain rules, implies the necessity of a power to 
enforce compliance. Without it, the rules would be 
useless in a society which is a society of right, and ex- 
ists of necessity, not of option, or a society of charity or 
love. 

3. The members of this society never lose their indi- 
vidual character ; they do not merge in the state ; but 
their individual character, and with it those things which 
are necessary for it or comprehended in it, as life, free 
agency or freedom of action, that is, the right of doing 
everything they choose to do, provided it do not militate 
with the freedom of action equally claimed by others, be 
firmly and effectually protected. 

4. That each individual has an undeniable right to 
live in society and to share its advantages, because he 



sec. xxxm.] Essence of the State. 179 

must of necessity live in society, and absolute necessity, 
that is, that necessity which results from the essential 
nature of man, is the first of all rights, which is but in 
other words, what I stated above, when I said, the axiom 
of all natural law is, I am a man, therefore I have a 
right to be a man. Absolute necessity does not make 
right — a sentence often misused to represent, as right, 
what is wrong, though expedient — but absolute neces- 
sity is right. 

5. The state being a jural society, and rights being 
imaginable between moral beings only, it follows, that 
the state has likewise a moral character and must main- 
tain it. From what constitutes right, as has been shown, 
it appears that no right, consequently no specific rights, 
can exist between animals or irrational beings, since the 
right is founded on the claim each rational or moral be- 
ing makes on every other rational or moral being. 

6. Human society exists of necessity^nd the state 
being part of the human society (with what specific 
characteristic, to make it a specific state, we shall see 
presently), in which the ideas of right and the means to 
obtain and protect it, are more or less clearly developed, 
it exists likewise of necessity. Man cannot live without 
the state ; it is necessary to his nature ; the state is one 
of the natural states of man. This probably was meant 
by the celebrated Selden, when he says, " But in truth, 
and to speak without perverse affectation, all laws in 
general are originally equally ancient. All were ground- 
ed upon nature, and no nation was, that out of it took 
not their grounds ; and nature being the same in all, the 
beginning of all laws must be the same." (Selden's 
note to Fortescue De Laud. Legg. Angliae, chap, xviii. 
note g, p. 33, 2d ed. 1741). And what is this nature ? 



180 The State. [book ii. 

The imprint of all created things stamped upon them by 
their creator; the vital principle of life he laid down as 
the foundation of their essence and being. £ Laws,' says 
Harrington, in his Political Aphorisms, ' are founded in 
nature. Nature is God' (1). 'In the name of God,' 
are the words with which the compact made on board 
the May Flower, November 11, 1620, begins. (Char- 
ters and Laws of the Colony of New Plymouth. Bos- 
ton, Mass., 1836, p. 19). To follow nature, thus under- 
stood, is the deam sequi of Seneca. 

7. The state always remains a means, yet it is the 
most indispensable means to obtain the highest end, 
that man be truly man. The salus popidi, not the salus 
civitatis, is the suprema lex. The state exists to obtain 
or maintain the weal of the people ; but we must be- 
ware not to give a mean signification, perhaps mere 
physical well-being, to this term of common weal, or 
salus populL 

On the one hand, the individual stands incalculably 
higher than the state ; for that he may be able to be all 
that he ought to be, the state exists, and each individual 
has that over which the state can never extend, because 
it cannot be drawn into jural relations, and because it 
will outlive the state — the soul. ' Over the soul can and 
will God allow no one to rale but himself alone,' says 
Luther (2), who had no extensive views of individual 
civil liberty, beyond what touched the religious liberties, 
nor could it well be expected of him. 

On the other hand, the state stands incalculably above 
the individual, is worthy of every sacrifice, of life, and 
goods, of wife and children, for it is the society of soci- 
eties, the sacred union by which the creator leads man 
to civilisation, (ho bond, the pacifier, the humanizer, of 



sec. xxxiil] Essence of the State. 181 

men, the protector of all undertakings in which and 
through which the individual has received its character, 
and which is the staff and shield of society. Not 
that I am guilty of the egregious folly of believing 
that everything in the state is good, that the authorities 
established by the state may not sanction unwise, bad, 
wicked things. Jam vero stultissimum illud existimare 
omnia justa esse, quae sita sunt in populorum institutis 
aut legibus (Cic. De'Legg. i. 13) ; but the state, as the 
chiefest of human unions, is a sacred institution, and 
deserves each man's faithful devotion, to serve where it 
is right, to improve where wrong. 

8. The state existing of necessity, and it being each 
man's natural society, it follows that each member singly 
owes some duties to each member collectively, and, 
of course, all members collectively have certain rights 
(and, consequently, duties) toward each man singly. 
Again, that as the individual stands higher than the 
state, he is free to leave it. And, perhaps, it may be 
as well observed here as in any other place, that emi- 
gration does not necessarily imply want of patriotism. 
Patriotism, not unfrequently, causes us to emigrate. 
What nation loved more ardently their native soil and 
state than the Greeks ? What nation, at the same time, 
was ever more given to emigration than the Greeks 1 
They lighted indeed the sacred lamps which they took 
with them in the temple of their mother city, still they 
emigrated. The Mahometans have compasses made 
which point to Mecca (of course, with reference to 
one country only); there are many emigrants whose 
hearts resemble these compasses, and you would be 
uncharitable indeed were you to charge every emigrant, 
because he emigrates, with want of patriotism. On the 



182 The State. [book ii. 

other hand, as the state is infinitely above the indi- 
vidual, we measure not our attachment by a daily ac- 
count and balance of profit and loss. The state is a 
society for weal and woe. Cum bonis omnibus coire 
non modo salutis verum etiam periculi societatem. (C. c. 
Rabir. 7). 

9. The state does not make right (3) ; it protects 
original rights, and, of course, in so doing, modifies their 
mutual operation, and in order to protect them, the state 
must publicly acknowledge, sanction them, limit them, 
or confer privileges. It is with right very much as with 
value. The agents of the state may place a stamp on 
precious metals, and make coin, but the state cannot 
make value. (See M'Culloch on Commerce and others). 
So did the council convened by pope Julius II, to 
oppose the one assembled at Pisa, declare the neces- 
sity of the belief in the immortality of the soul. Start- 
ling as this procedure may be to us, on account of the 
state of things it reveals, still no one believes that the 
assembled prelates meant to make the soul immortal ; 
all they could mean was to declare the belief of the 
church (4). The French convention went, and was 
perhaps obliged to go, still farther. They decreed their 
belief in a supreme being. 

(1) Item author justiciar est deus, secundum quod justitia est in 
creatore. Bracton de Legg. et Consuet. Anglise Lib. i. c. 3. 

(2) Luther on the Duties of the Subject to his Magistrates. 

(3) This the state would undoubtedly do, if we adopt the view 
of some earlier writers, e. g. Rutherforth's, according to whom, 
Book ii. ch. 1, right is nothing but lawfulness, that which the law 
permits. So a man can have no right except what the law 
sanctions, yet by far the fewest nations have positively enacted 
the principle that a man can do everything that is not prohibited, 
and yet nearly all acknowledge the principle. Where then does 



sec. xxxiv.] Essence of the State. 183 

this right come from ? Where does this right of the lawmaker 
himself come from 1 
(4) Raynald, § 1. 

XXXIV. We have arrived then at the following im- 
portant truths : 

1. The state exists of necessity, and is the natural 
state of man. 

2. The state is a jural society. 

3. The state is a society of moral beings. 

4. The state does not absorb individuality, but exists 
for the better obtaining of the true ends of each indi- 
vidual, and of society collectively. 

5. The state, being a human society, jurally considered 
and organised, is the society of societies ; a bond for 
weal and woe. 

6. The state does not make right, but is founded 
upon it. 

7. The state is aboriginal with man ; it is no volun- 
tary association, no contrivance of art, or invention of 
suffering, no company of shareholders ; no machine, no 
work of contract by individuals who lived previously, 
out of it ; no necessary evil, no ill of humanity which 
will be cured in time and by civilisation ; no accidental 
thing, no institution above and separate from society, 
no instrument for one or a few — the state is a form and 
faculty of mankind to lead the species toward perfec- 
tion — it is the glory of man (1). 

(1) Dahlmann, Politics, reduced to the Basis and Standard of 
given Circumstances, vol. i. Gottingen, 1835, in German. Mr. 
Dahlmann is one of the Gottingen professors, who honorably pro- 
tested against the abolition of the Hannoverian constitution by 
king Ernest (duke of Cumberland), and, in consequence lost their 
respective chairs. 



184 The State. [book m 

XXXV. When it is asserted that the state exists 
of necessity, and is the natural state of man, it is not 
pretended that the idea of the state, such as I have 
represented it, has existed and been clearly acknow- 
ledged from the beginning. The history of the state 
is similar to that of all other ties and institutions, founded 
in man's nature, and of which I have said already, that 
their character becomes more distinctly developed on 
their own essential ground, and that their operation 
consequently becomes more powerful with every ad- 
vanced stage of civilisation, which in other words only 
means, with every farther development of man's true 
nature. No states are so powerful in their action, 
within and without, as those of civilised nations. It is 
the same with property, marriage, the family, division of 
labor, exchange, intellectual intercourse, protection of 
person, public opinion. Nothing is more natural to man 
than some sort of administration of justice ; it begins 
with the father in the family, and man cannot possibly 
live without it. Yet every progress in civilisation se- 
cures it more and more, notwithstanding the diminution 
of accompanying physical force to the contrary. How 
weak and fragile are the theoretically absolute govern- 
ments of the East, and where is the state more power- 
ful than in England ? Where has it greater resources, 
where does every individual feel himself more identi- 
fied with it, or rush more readily to its assistance when 
in danger? I do not, of course, mean by state, the 
government, and by government the executive — a very 
common confusion of ideas. I do not mean that with 
every progress of civilisation the numeric strength of 
the standing army is increased, though this too has 
often been believed to constitute the strength and sinew 



sec. xxv.] Civilisation increases Power. 185 

of states (1) ; or that the executive becomes more abso- 
lute ; I mean something far higher. I mean that the 
essential attributes of the state become more distinctly 
understood, affect more powerfully each individual, unite 
men into a more closely interlinked community, that it 
extends protection and receives stronger support, that 
vast, powerful public opinion joins it — in short, that the 
intensity of its action in a thousand different ways 
increases. Mr. Elphinstone, in the quoted work, page 
338, says, 'JNTone of all these (Afghanistaun) chiefs 
have authority equal to that of a constable in Eng- 
land.' Yet theoretically their power is, in the main, 
in conformity to Asiatic notions of the authority of 
rulers. 

This progress is but slow ; sometimes even fearfully 
retrograde movements take place. Ideas which we now 
cannot help connecting with the state, attributes, which 
appear to us extremely simple, were not always clearly 
before the mind of the people. Thus much time was 
requisite to distinguish between bare, temporary expe- 
diency and true right and morality. We are informed 
that with the ancient Egyptians, those who intended to 
follow the profession of theft gave their names to the 
chief of the robbers. By this custom a person who 
had been robbed could always obtain his stolen goods 
after paying a quarter of their value, which was consid- 
ered much better than to expect protection from the laws 
alone, and lose the whole. Thieves who did not belong 
to the corporation, were not suffered by the other incor- 
porated rogues ; and the chief of the robbers was pro- 
bably paid by government and ' a man of integrity and 
honor' (2). Whatever advantage we might expect 
from an arrangement of this sort or a similar compro- 

vol.i. 24 



186 The State. [book ii. 

mise with crime itself, we could not, durst not resort to 
it. The injury to moral feeling and to the very concep- 
tion of the state in the citizens, would be infinitely 
greater than the advantage of recovering stolen pro- 
perty. If we suppose that theft thus regulated, would 
operate with us as it is represented to have done with 
the Egyptians, prdperty, indeed, would thereby be 
better protected, but the general protection, the security 
in obtaining the highest ends of society, would be 
incalculably injured. 

(2) Even Algernon Sidney could say, 'that is the best govern- 
ment, which provides best for war.' Discourses, chap. II. sect. 23. 

(2) Manners and Customs of the Ancient Egyptians, including 
their private Life, Government, Laws, Arts, Manufactures, Reli- 
gion and Early History, &c. by J. G. Wilkinson, 3 vols. 8vo. 
London, 1838. 

XXXVI. If man, as was shown, arrived very early at 
the idea of property and could not live without it, he 
must equally soon have been led to the idea of the just. 
If every relation between the father and his child might 
be imagined as solely resting on authority, power, or 
affection, we cannot, at least, imagine two children of 
the same parents to exist long without giving necessary 
rise to the ideas of equality, of justice. Let one brother 
set down upon a log, and the other claim the seat; 
the ideas: why? it is not right; have I not as good a 
right as thou hast ? must have struck the mind of the 
first. Yet the paternal authority in dealing out justice, 
was still too much aided by the whole parental relation, 
to allow man strictly to separate them. The father, the 
chief, the ruler, the priest were united in one person ; 
the various attributes had not yet developed themselves 



sec. xxxvi.] The State, the State of Mature, 187 

as distinct from one another. This state of things con- 
tinued even for some time after families had already 
increased into tribes. The patriarch ruled over the 
whole. A state existed indeed ; for there was justice 
administered, and where justice is administered there 
are rights acknowledged, and where rights are acknow- 
ledged there is the state ; but it was the state in its 
incipient stage. Gradually the characteristics of the 
family and the state, of that which is fair and that which 
is just, showed themselves with greater clearness (1); 
though the development of the state was and continues 
to be affected by a variety of adventitious circumstances, 
as everything else connected with mankind. The tree 
in blossom or with the ripe fruits is in no less natural a 
state than in winter when deprived of all foliage, nor is 
the plant in an unnatural state when yet unfolded in the 
germ. Nowhere do we see man without the state in 
some stage of its development, and Aristotle is right in 
saying, man is by nature a political being (cpvon noli- 
tv/.ov avd-Qtonog). If part of the ties of the state are 
broken, the fragments will immediately unite again ; and 
if men are thrown out of the pale of a large society, 
they themselves must instantly again unite to obey 
some general rule, to have it insisted upon by some 
authority, to begin the state anew. The 'regulators' 
in the farthest West, men who, for some reason or other, 
enjoy a degree of consideration, and take the law into 
their own hand, while the others tacitly or otherwise 
agree to it, form a remarkable instance of this inherent 
political nature of man (2). Men cannot possibly exist 
without law. The mutinous sailors, after having dis- 
patched their captain, must elect another and obey him ; 
the pirates who break with human society and declare 



188 The State. [book ii. 

themselves out. of its pale, are bound to constitute forth- 
with a state of their own, that is, a society in which 
there are general rules, rules which will be enforced if 
not obeyed, rules on which the individual can insist if 
transgressed by another, because established for the 
jural relations among them, in order to maintain what 
they consider right, to do justice — a society in which 
there are superiors and inferiors, which acknowledges 
authority. The history of the Buccaneers is in point. 
When ail laws were defied in Germany, the Feme 
Courts sprang up (3). When the planters of the 
colony of New Haven met on the 4th of April, 1639, 
'for the establishment of such civil order as might be 
most pleasing unto God,' the first question propounded 
was not, whether a civil government was necessary in 
the opinion of the assembled and previously entirely 
disunited planters, but at once, according to the spirit 
of the age, 'Whether the scriptures do hold forth a 
perfect rule for the direction and government of all men 
in all duties, &c.' (4) I do not know of a solitary 
instance in history when the question was asked, is 
some sort of government or other necessary or not; 
except in some melancholy cases by frantic fanatics, 
who preached the advent of the millenium, on the one 
hand, or by the inquiring philosopher on the other, in 
order to prove its connexion with all that is human in 
man. 

(1) The Areopagites had to declare guilt or innocence, or the 
amount, of punishment with reference to the whole life of the ac- 
cused. .'Esch. c. Tim. 113. The English or American juryman, 
according to his oath, must decide upon the evidence as it shall be 
given, and according to nothing else. 

(2) They are mentioned by Mr. Audubon in his Biography of 



sec. xxxvil] The State, the State of Nature. 189 

American Birds. An article of great interest with regard to this 
subject, on Pony Clubs among the Indians, is to be found in the 
National Gazette (Philadelphia) of October 21, 1833, copied from 
the New York American. 

(3) Much light has been thrown upon this subject by some late 
publications of the documents of Feme processes in Germany. 
See B. Thiersch, The Outlawing of Duke Henry the Rich, of 
Bavaria, by the Secret Feme in Westphalia (in German), Dort- 
mund, 1835, and the Westphalian Feme Courts in Relation to 
Prussia, represented from the Sources and illustrated by Do- 
cuments (in German), by T. Voigt, Professor of History and Ar- 
chivarian, Konigsberg, 1836. — It is preferable to adopt this ortho- 
graphy, for thus the word is written in German, and though in 
former times the v was used, it must not be forgotten that v and f 
have the same value in German ; the English veme, therefore, ex- 
presses an incorrect sound. 

(4) The record of this very peculiar meeting is to be found, 
among other works, in the Code of 1650, of Connecticut, &c. 
Hartford, 1825, p. 114 & seq. 

XXXVIL The members of the state do not stand to 
each other in the relation of members of one family, nor 
as mere individuals brought together for the sole purpose 
of protecting one another against bodily harm, nor for 
any temporary and selfish purpose. The state has far 
nobler objects to obtain, though these are included. 
Without peace, society cannot live, and protection 
against bodily harm is undoubtedly one of the first ob- 
jects of the state. We have seen that man is destined 
to acquire and possess property, and that it forms one 
of the primary requisites of civilisation. The state, 
therefore, has vigorously to protect it. But there are 
more important objects yet to be obtained in the course 
of civilisation ; and protection, as has , been stated, in- 
cludes more than the sole warding off of injury to my 
person or property. Ignorance and barbarity, for in- 



190 The State. [book ii. „ 

stance, are likewise to be warded off, not only on the 
negative ground, that, if not, they will produce insecu- 
rity, but on the positive ground, that knowledge and 
education are necessary for man's civilisation, and must 
be obtained by society jointly (e. g. by common school 
systems, universities), if they cannot be obtained by in- 
dividual energy or voluntary association. The state has 
been compared to an insurance company, in which pro- 
perty forms the share each citizen holds. Sad indeed 
would be that state where this principle should be at- 
tempted to be acted out ; attempted, for it would be 
absolutely impossible ever to carry it through. It w T as 
a view common, towards the end of the fast century, 
and is maintained by some to this day, yet it is, even as 
a mere simile, radically wrong. For how is it, that the 
state legislates also over those who have no property, 
and that they have a right to ask not only protection, 
but all the benefits guaranteed by human society, organ- 
ised into a state, that is, human society, acknowledging 
certain authorities as the pronouncers and executors of 
the law ? How is it that no one has a right to withdraw 
from this insurance company, and say, ' I am my own 
insurer;' in other words, 'I renounce your protection, 
I can take better care of myself; give up, therefore, all 
claims you make on me ; do not consider me any longer 
amenable to your laws.' According to this hollow the- 
ory, men possessed of such enormous property as the 
marquis of Westminster, the duke of Buccleugh, the 
Portlands and Bedfords, ought to have each a hundred 
votes at least in parliament ? Whence, above all, do we 
derive the power of the state, which it undoubtedly has, 
and has always exercised, from time to time materially 
to interfere with property, to prune it ; if the state exists 



sec. xxxvn.] The State no Insurance Company. 191 

only to protect it, and has no higher aims ? The suppo- 
sition that the state exists by a voluntary contract, is 
open to similar objections, though there is some truth in 
the latter theory, but none whatever in the former. 
The state is, in principle, no association, but a society. 
The comparison of the state to an insurance com- 
pany is one of the innumerable instances of men grasp- 
ing at similes, when they are unable to find out or 
to present the principle of the thing itself, forgetting 
the danger of building arguments on those parts of the 
simile which do not fit, as well as on the others, to 
which they necessarily expose themselves. Similes and 
metaphors are most dangerous in arguments on religion, 
sciences and politics ! They are serviceable by way 
of illustration, to drive more forcibly the pointed wedge 
of argument into a stubborn block — to use one — but 
always misleading us if we argue upon them. Theo- 
logy and politics offer melancholy illustrations of these 
facts. Millions have died for similes. Years of debates 
are spent because people will not approach the naked 
principle, or cannot get rid of associations deeply 
wrought into the mind by a simile, which we have heard 
from early childhood. Equally dangerous, if not more 
so, is personification, and after the abstract or collective 
idea has been personified, the reasoning upon it, as if it 
were one thing. I shall revert to this subject when 
speaking of the People. May I merely add here, that 
the words 'it is supposed,' of constant occurrence in 
English political law, ought to be discarded, because 
they are apt to lead to fallacies. Who can forget all 
the fearful arguments of the crown lawyers and judges 
under the Stuarts, founded upon the suppositions and 
political fictions of the English law. Politics are mat- 



192 The State. [book ii. 

ter of reality, of right, and have nothing to do with sup- 
positions. Blackstone is full of them ; ' the king is sup- 
posed to be ubiquitous /' after which we find arguments 
founded upon this assumption. The king may be sup- 
posed so, but he is not, nor can he be. All these fic- 
tions and inventions of apparent principles for facts, 
which we wish to justify, explain, or connect — for to 
this the fictions amount — savor strongly of the school 
philosophy in its boldest, and, at the same time, least 
imitable state. 

XXXVIII. How a theory, as that of the state's being 
a large insurance company, had its origin, may easily be 
explained. The most extravagant ideas of the origin 
as well as the true character of the state, had been start- 
ed ; the state, the government, and finally the individual 
at the head of the government, were partly, at times, 
entirely confounded. A monarch (Louis XIV) had de- 
clared, Vetat c'est moi (I am the state) ; and though he 
was at the time but a boy, yet he pronounced it in the 
parliament of Paris, and of course must have been told 
so to do by his advisers. Nearly everywhere on the 
European continent did government act on the principle, 
whether avowed or not, that the monarch with his army 
and civil officers, was the state ; nearly everywhere was 
the odious interference principle, according to which 
government might interfere with all my affairs, however 
private, carried to most injurious length, and all the 
minor circles of the state, of the whole jural society, 
were so entirely deprived of a proper action of their own, 
that a perfect absorption by the central and only power 
became the necessary consequence ; nearly everywhere 
on the continent of Europe had the individual been so 



sec. xxx vin.] The State no Insurance Company. 193 

wholly merged in the state, such as its character then 
was imagined to be, that it was natural, in the course 
which the human mind takes, that politics should pass 
first through the other extreme, by which the state is 
construed in a negative way, if I may express it thus, 
and according to which, as an author has said, all the 
state has to do is, ' to look out that my neighbor does 
not pick my pockets, or box my ears,' before a truer 
view could be obtained. The foundation of the state 
lies too deeply in the human soul, in man's whole na- 
ture, to be explained simply by selfishness. It is no 
accidental mass of atoms, it is an organism. Observe 
a steamboat full of passengers, all collected for one pur- 
pose, to reach a certain point as soon as possible, all in 
the same condition, having paid their fare, and equally 
interested in the safety of the vessel. Besides these 
points, every passenger forms an isolated individual. Is 
this the picture of a state? What a society do they 
form ! with what utter selfishness every one acts and 
struggles for himself. Is this a society ? an organised 
thing, with life and energy, with moral elasticity, with 
power, which can rest on close union alone? with an 
elevating, a humanizing character? Are there no other 
considerations than those of protection of property and 
life, which unite us into a state ? Then, how unwise to 
sacrifice either for liberty ! Then, how absurdly did 
the Athenians act, when the Persians offered them to 
live peaceably under their government, but they prefer- 
red to abandon property, city, all, and to expose their 
lives on board their vessels in the battle at Salamis ! 
Then let us celebrate the Thessalians, the Locrians 
and Boeotians, who willingly sent earth and water to 
the Persian monarch upon the first call to submit, and 
vol. i. 25 



194 The State. [book ii. 

blame the other Greeks, who pronounced a curse 
over their faltering brethren, and vowed that a tithe 
of their lands should be consecrated to the Delphian 
Apollo. Then we ought to consider all those most 
thrilling pages of Herodotus on the Persian wars as 
but a sad illustration of man's folly ; and the cautious 
and well-weighing Heeren is but to be pitied if he says, 
with reference to that struggle, that whatever mean acts 
were mixed with the greatest, " yet in the whole com- 
pass of history we can find no series of events which 
deserves to be compared with the grand episode then 
exhibited ; and with all the exaggerations of the orators 
and poets, the feeling of pride with which the Greeks 
reflected on their achievements, was just and well- 
founded. A small country had withstood the attack of 
half a continent ; it had not only saved the most valua- 
ble possessions which were at stake — its liberty, its in- 
dependence — but it felt strong enough to continue the 
contest, and did not lay down its arms till it was able to 
prescribe the conditions of peace." (Pol. History of An- 
cient Greece, transl. p. 126). 



(195) 



CHAPTER V. 

Legitimate Objects of the State. — Danger of intermeddling Legislation, 
Instances. — Primordial Rights and Claims. — Physical Life and Health. 
— Law of Necessity. — Personal Liberty. — Right of Individuality; no 
Absolute Obedience possible. — Right of Share in the Protection of the 
State. — Jural Reciprocity. — Right to be judged by Laws, and Laws 
only. — Right of Communion or Utterance. — Liberty of the Press. — 
Right of Morality. — Immoral laws, no Laws. — Right of Honor, Re- 
putation. — Family.— Religion, Creed, Worship. — Right of Property, 
Acquisition, Exchange. — Right of Emigration. — Inalienable Rights. 
— State cannot take Revenge ; the Crown cannot feel "Wrath. — Politi- 
cal Absurdity of speaking of King's Anger or Nation's Revenge as 
Political Body. 

XXXIX. The truth with regard to what the state 
is, lies between two extremes. The one has been 
mentioned in the previous section; the other is ex- 
pressed by Aristotle, namely, that the state exists 
before the individual ; if we understand it in the way 
the ancients actually viewed the state. The state, ac- 
cording to them, was all and everything, the individual 
receiving his value from the state alone. The essential 
difference in the manner in which the ancients under- 
stood the state and what they considered the es- 
sence of liberty on the one hand, and the modern 
views on the other, will be more fully treated hereafter. 
Aristotle was right, if he meant to say that man cannot 
exist without the state, that the state is not an optional 
thing, or an artificial contrivance, but that it exists by 
necessity as effect and consequence of our nature, as 



196 The State. [book ii. 

language is not conventionally made, but exists between 
men as a necessary consequence of his physical and 
intellectual nature, that the necessity of the state lies in 
every individual, and every one, therefore, finds already 
a state, in whatever stage of development it may be. 
The right of society to legislate, that is the right exist- 
ing somewhere, of prescribing general and imperative 
rules, has, I believe, never been doubted, any more 
than the right of breathing in the individual ; both flow 
from the same source — necessity, according to our 
nature. They are conditions of our existence as hu- 
man beings. We might live as brutes without the 
institution of the state, but for our existence as human 
beings the state is a conditio sine qua non, and this 
absolute necessity constitutes the ground on which is 
founded what is called sovereignty, that is, the self-suffi- 
cient power, which derives its vital energy from no other, 
is founded by no superior authority, but imparts it and 
extends over everything that is requisite in order to ob- 
tain the object of the state ; which man has to obtain 
in and by society, in as far as it is founded on jural 
relations, i. e. on right, on terms of justice, or mutual 
obligations. Yet be it mentioned thus early, sove- 
reignty means something entirely different from abso- 
lute power, unbounded power. 

XL. The state (or human society organised on and 
according to its jural relations) has for its legitimate 
objects, all those things that are necessary or highly 
important for man, and which he nevertheless 1, cannot 
obtain singly ; 2, ought not to obtain singly (because 
he exposes himself or his fellow-citizens by doing 
so to great danger, for instance, by redressing privately 



sec. xl.] Object of the State. 197 

interferences with his rights) ; 3, will not do singly, 
(because burthensome, disagreeable, &c, e. g. to keep 
roads in good order, establish common schools, pay 
what we owe). Thus life is absolutely necessary for 
man, and if he cannot possibly obtain medical assist- 
ance, society is bound to furnish it. Public hospitals 
are not a mere matter of charity, they are a matter of 
right. That they may be abused, and easily abused we 
know ; we know too that their abuse interferes with 
some sacred interests of society, for instance, lively 
family interest. If the Greeks thought that the develop- 
ment of taste was essential to the whole development of 
man, and that individual means were insufficient to 
effect the necessary cultivation of the fine arts, the state 
was right in promoting them by public means. If 
the British people believe that the love of the fine 
arts has the twofold salutary effect of softening the 
manners, of humanising and aiding in bringing out 
what is human within us, and by elevating taste and 
likewise raising the standard of comfort, which again 
is of essential importance to national industry, then 
parliament have a right to spend money for the im- 
provement of the British museum, and act wisely in so 
doing, and the most scrupulous citizen must rejoice 
at the constantly increasing number of visiters of that 
interesting institution. That a museum ought not to 
be promoted at the expense of things more urgently 
important, is a matter of course. Political wisdom and 
honesty must decide in practice ; and practice in politi- 
cal matters is attended with the same difficulties as in 
any other sphere, because in practice various interests 
clash, and we must choose between them. If society 
be convinced, that institutions of deep learning, univer- 



198 The State. [book ii. 

sities, are of absorbing importance to society, because 
science must always be far in advance of practice, and 
because the cultivation of the sciences for their own 
sake, and not with a confined view of immediate prac- 
tical application, raises the standard of knowledge in 
general, and is a great blessing to a community, and 
if the state be convinced that private means must ever 
be insufficient for the erection of a university and the 
collection of large libraries, museums, &c., or if expe- 
rience have shown that private exertion will not be di- 
rected to the foundation of a university, then the state 
has precisely the same right, and the same obligation to 
found a university as it has to aid in the foundation of 
common schools, or hospitals, courts, pilots, or armies. 

Everything in the state must be founded on justice, 
and justice rests on generality and equality. The 
state therefore has no right to promote the private 
interests of one and not of the other. It promotes my 
interests if it assists me in getting my debts paid, but 
it is ready to do so to everybody. It promotes private 
interest if it gives a pension to the widow of a soldier, 
but it is done on the ground that society owes her a 
debt, or that it is good for society thus to encourage 
soldiers. If the state gives money to a traveller into 
distant regions, or to study the arts in Rome, it does it, 
because the public is believed to benefit by it, directly 
or indirectly, but the money is not given to the private 
individual as such. Though public gifts of this nature, 
pensions and the like, have frequently been bestowed in 
a shameless manner upon Somersets and Buckinghams, 
it was generally at least pretended that it was done for 
some public good, to reward loyalty, surround the 
throne with splendor, &c. The riches publicly lavish- 



sec. xli.] Object of the State. 199 

ed by a Louis XV or Charles II upon dishonorable 
characters make an exception ; so does their age. I 
do not know that, what is lawful for the state to do, 
and how it ought to be done, has ever been more lu- 
cidly expressed than in the following passage of Isidorus 
(Lib. V. c. 22), in which the pleonasms are more ap- 
parent than real. " Erit lex honesta, justa, possibilis, 
secundum naturam, secundum consuetudinem patriae, 
loco temporique conveniens, necessaria, utilis, manifesta 
quoque, ne aliquid per obscuritatem in captione conti- 
neat, nullo privato commodo sed pro communi utilitate 
civium scripta." 

XLI. It is evident that, according to the principles 
laid down, there is no theoretical difficulty respecting 
the subjects which require the action of the state or 
not, and those which the state ought never to touch. 
But in practice there is much difficulty, because it is 
not easy to decide what is of sufficient general interest 
to allow of, and what of sufficient general importance 
to call for public action. The choice of the subjects 
with which the state ought to interfere must essentially 
depend upon the state of civilisation of the society and 
the difference, as to knowledge, between the authorities 
of the state and the ruled. ( The general principle un- 
doubtedly is, interfere as little as possible with the private 
affairs of the individual. I This is clear from the object of 
the state. The intermeddling of the state with private 
affairs is unjust, burthensome and dangerous ; requires 
enormous sums, and frequently springs from other mo- 
tives than a wish to be useful to those whose affairs are 
intermeddled with. If society have a fair start in civili- 
sation, no principle can be sounder than to leave as 



200 The State. [book 11. 

much to private exertion as the public weal, comfort 
and morality allow. Individual industry, private com- 
bination and associations, which are conscious that they 
depend upon themselves alone, are possessed of a vigor, 
keenness and detailed industry, which cannot be expect- 
ed of the action of the state if applied to industry, or other 
exertions partly connected with industry. The Ameri- 
can packets to Liverpool and Havre ply more swiftly than, 
or at least as swiftly as any government packet ; but it 
must not be forgotten that this requires a general free 
action. Nothing is more common than that single 
branches are badly conducted by the people in countries 
in which government has in general annihilated the inde- 
pendent exertion and native individual vigor. A similar 
principle applies to the affairs of government matters 
themselves, as will be seen in the sequel. On the other 
hand, the state, its public authorities, have frequently 
means of obtaining correcter, wider views, ampler and 
more detailed knowledge, in short, official information 
unattainable by the individual, and can command the aid 
of better qualified persons, so that interfering becomes 
just, because demanded by public interest. Experience 
alone shows in practice which is the true limit and mean, 
provided only that the first principles of the state, of right, 
are always kept in view. The task of a Peter the Great 
of Russia, to unite and raise a barbarous nation, is 
very different from the problem to be solved in a coun- 
try like England. Nothing can be more preposterous 
than a police interference with the cooking of the peo- 
ple, yet in times of a devastating plague, no community 
would hesitate to interfere with the choice of food, if 
such a measure were considered essential to public health. 
In general, it may be said that views respecting this 



sec. xlii.J Principle of Interference. 201 

subject are fast becoming more correct. During the 
latter part of the last century and the beginning of the 
present, the more active governments on the continent 
of Europe, carried the intermeddling principle to such 
an extent that no affair, ever so private, seemed to be 
considered as not belonging to police inspection. It 
has been found, however, even where the people did 
not insist upon the contrary, that this course leads to 
most calamitous and useless results. Yet this mistaken 
notion of the duties or rights of the state is met with also 
in earlier periods than the one mentioned (1). It is ne- 
cessary to have seen nations, who have been forced for 
centuries to submit to constant and minute police inter- 
ference, in order to have any conception of the degree 
to which manly action, self-dependence, resoluteness, 
and inventiveness of proper means can be eradicated 
from a whole community. On this account, systematic 
interference weakens governments, instead of strength- 
ening them, for in times of danger when popular energy 
is necessary, when ' every man must do his duty,' or 
the state is lost, men, having forgotten how to act, 
look listlessly to the government, not to themselves. 
The victories of Napoleon over the many states east 
and south of France were in a great measure owing to 
this natural course of things. 

(1) Christian II. of Denmark, who lived in the beginning of 
the sixteenth century, prescribed by heavy penalty, not only how 
the street and entry of houses ought to be swept, but when and 
how benches and tables in the houses were to be scoured. Rau- 
mer's History of Europe since the Fifteenth Century, vol. II, p. 
114, where the proper authorities are given. 

XLII. From the elementary truths, which have been 
found, we shall be enabled to draw conclusions of mo- 
vol. i. 26 



202 The State. [book ii. 

mentous importance both with regard to the individual 
members of the state, and to the state collectively. 
These truths have been more distinctly developed in 
the course of civilisation ; the more essential their im- 
portance, the more steadily and distinctly have they 
gradually unfolded themselves, and are consequently to 
be regarded as natural to man and the state. The fol- 
lowing remarks will contain some amplifications of what 
has been stated in sect. XXXIV, and previous sections. 

The writers on natural law speak of several original 
rights ; that is, rights which I possess as human being, 
quatenus homo sum, and are contradistinguished to ac- 
quired rights. The former are likewise called personal 
rights, because inherent in every individual, i. e. human 
individual. Properly there is but one original or pri- 
mordial right, that of my personality, the right I have 
expressed already by way of axiom : ' I am a man, 
therefore I have a right to be a man.' By my existence 
I prove my imprescriptible right to my existence as 
man, physical, intellectual, moral — my right, that hu- 
manity in me be not annihilated, and, inasmuch as free- 
dom of action constitutes one of the chief ingredients of 
humanity, that I am allowed to do all that does not 
interfere with the same right in others. 

The truths we have so far ascertained are : 

Man is an individual, and must for ever remain such. 

Man is a moral being, each one for himself. 

Man must live in society. 

Man, as a free agent, becomes, in contact with others, 



sec. xlii.] Primordial Rights. 203 

a jural being (a being who has rights toward others, 
and toward whom others have rights, that is, who has 
obligations). 

The state is a jural society. 

From these positions we derive the following conclu- 
sions : 

1. The physical life of the individual is the first of all 
conditions of my existence as man. The state, there- 
fore, cannot take it for the benefit of others, because 
they would violate the first of my rights — that of living, 
without being able to give me an equivalent, unless the 
state have acquired a right over my life on the specific 
ground, of my having forfeited it (1). The Spartans 
murdered at times the helots. ' They kill of the helots 
as many as is necessary ' (2). The extrajudicial killing 
of a person may become absolutely necessary in a spe- 
cific case of self-preservation, as, for instance, it seems 
to have been necessary on board the wrecked French 
vessel Medusa, which I shall have to mention here- 
after ; but when a state institution regularly requires it, 
it shows thereby alone that it ceases to be the state, the 
protecting society, and, of course, that all mutual obliga- 
tions are at an end. The majority have not the right 
to kill the minority, as happened in the case of the 
* Corcyrean Sedition,' related by Thucydides, for to this 
amounts in my opinion that massacre — a prototype to 
the massacre of St. Bartholomew. Richelieu, who will 
be allowed to have possessed high notions of the king's 
power, said, the king is not master of life and death. 



204 The State. [book ii. 

and cannot command duels to be fought. (Richelieu, 
Memoires III. 41. Political Testament I. 190). 

Closely connected with this right, is the claim of pro- 
tection for my body, limbs and health. Many considera- 
tions of high importance must give way if clashing with 
the sanitary interests of the members of the community. 
Every other right is to give way if life and health is in 
question, and so high has it been considered by the 
civil law, that to save my life, if under absolute neces- 
sity, every right of others may be disregarded {jus 
necessitatis; necessitas non habet legem). If a man 
be in actual and palpable danger of starvation, he may 
make use of any one else's property. Necessity, as 
it is expressed, does not establish a right but annihi- 
lates accountability. (See C. A. Tittmann, Manual of 
the Science of Penal Law, in German, vol. I. § 89). 
The English Common Law does not acknowledge 
absolute necessity as a ground of non -accountability, 
except in cases of self-defence, though the rectifying 
principle in the institution of the jury would not allow a 
man to be punished for having eaten what did not 
belong to him, in a case of starvation. 

(1) The question of capital punishment cannot be developed 
here ; may it suffice that, according to the true principles of the 
punitary power in the state — see Lieber's Letter to the President 
of the Phila. Prison Society on Subjects of Penal Law, Phila. 
1838 — no doubt can be entertained as to the abstract right in the 
state to punish capitally for certain crimes. The question only 
can turn upon these points : is it requisite, expedient, will its 
continuance in the penal code aid in punishing crime or protect 
against it, and can man establish a mode of ascertaining the truth, 
i. e. of trial, on which he may so far depend as to take away, upon 
its result, the life of another and debar, not the restitution of what 
we have taken, for this we can neither in imprisoning (we may 
set again a prisoner free, but we cannot restitute to him his lost 



sec. xliv.] Primordial Rights. 205 

liberty), but the acknowledgment of error and arrest of the pun- 
ishment. This then would lead to an inquiry into the various 
modes of penal trials and their actual operation. It belongs like- 
wise to the question of expediency whether the punishment substi- 
tuted for death can, according to existing circumstances, ever more 
powerful than professions and wishes, be faithfully maintained. 

(2) Heraclides Pont. Fragm. II. Compare Plutarch, Lycurgus, 
c. 28, and also Thucyd. IV. 80. 

XLIII. 2. My personal liberty is a condition of my 
free agency as a member of society — is an ingredient of 
my humanity. The prisoner may be free in mind, freer 
than any one not in chains. Who was the freer of the 
two, the old, mild Barne veldt in prison, sentenced to 
death, and yet incapable of saying one word by way of 
petitioning for pardon, because he would not become a 
hypocrite and outwardly acknowledge guilt, even in the 
slightest degree, or Maurice of Nassau, who insisted 
upon it, and had him executed ? Yet as a being 
who has to obtain certain objects in this world and in 
society with others, I must be personally free. | The 
state cannot circumscribe my personal liberty in any 
way, unless I have forfeited it (1). The state exists to 
protect it, not to interfere with it. 

(1) Respecting imprisonment, and how the state is bound to 
protect even the convict, see the above quoted Letter to the Pre- 
sident of the Philadelphia Prison Society. 

XLIV. 3. The fact that man cannot by possibility divest 
himself of his individuality and moral character, shows 
that the state cannot absorb the individual (the state 
remains for ever a society, that is, a union of individuals), 
hence : 

a. Absolute obedience of any one to any other per- 



206 The State. [book ii. 

son is impossible ; for it would absorb individuality and 
annihilate the moral character, that is, individual moral 
value (requiring free agency) and responsibility. More 
of this under the head of Obedience to the Laws. 

b. Absolute power, either in society collectively or any 
individual is inadmissible ; for absolute power presup- 
poses (is only the antithesis to) absolute obedience. Nor 
can an individual, clothed with whatever authority, cease 
thereby to be a moral individual, with all his rights 
and responsibilities. The individual, personating the 
crown, cannot possibly divest himself of individuality, 
and consequently remains in a jural relation to other 
individuals. If a monarch shoots his subjects for plea- 
sure — and these cases have happened — does he do it 
as monarch, or has the individual no right to protect 
himself, and repel the aggressor or render him ofFence- 
less ? This subject will occupy us more under the head 
of Sovereignty. Suffice it here to say, the monarch 
cannot cease to be an individual, and as such to stand 
in jural relations to other individuals. Nor has ever 
any other view been taken in practice ; for whenever a 
monarch came to be considered a common invader of 
primordial right — a general nuisance — the people have 
made him innoxious. 

XLV. 4. Since I am an individual with a moral 
character, and stand therefore in jural relations to other 
beings of the same class, it is clear that reciprocity 
exists between us, for all right is, in its very meaning, 
founded on reciprocity. It cannot be right without it. 
The state, founded on these relations, has the same 
character, or, in other words, there are jural relations 
between me individually and the state collectively, there 



sec. xlvi.] Primordial Rights. 207 

is the relation of reciprocity between the two. The 
moment that any particular state were actually to treat 
me as merely existing for it, demanding only and giving 
nothing, or demanding without giving the equivalent, 
that moment the bond is dissolved and the state does 
not any longer exist for me — it is not my state. 

I believe it is this idea which forms the pith of chief- 
justice Markham's remark to Edward IV, that " the 
king cannot arrest a man upon suspicion of felony or 
treason, as any of his subjects may ; because if he 
should wrong a man by such arrest, he can have no 
remedy against him" (1). 

(1) Quoted in Hallam, Const. History of England, vol. i. p. 526. 

XLVI. 5. My standing in jural relations to the state, 
my obligations, rights, and penalties must be expressed 
and judged of by laws, for laws are the organs of the 
state. Rights imply, that he who has them can insist 
upon them ; he ought to have the power, or some one 
else for him, to enforce them. Hence they cannot de- 
pend upon personal views and feelings and affections, 
hence they must be clearly defined, not lie in an indefi- 
nite state in the breast of some one ; or, as in German 
terminology it would be properly expressed, rights are 
objective, not subjective. The connexion of the indi- 
vidual with the state then, his obligations and responsi- 
bilities, are to be judged by laws. Each member of the 
state has a right to be judged by laws. It is not always 
possible that laws be absolutely or mathematically defi- 
nite; it cannot be (see Political' Hermeneutics). An 
officer is sentenced for ' ungentlemanlike behavior,' and 
justly ; but what is gentlemanlike behavior ? Still he is 
judged by laws. He who demands unlawful things, be 



208 The State. [book ii. 

he who he may, does it as a private individual, at his 
own peril, for the state has no other means of speaking 
but through the law or lawful authority, i. e. authority 
keeping within the law ; all beyond it is private. "When 
the 'commissioners' used to send pursuivants to ransack 
houses, and an individual defended his rights by killing 
the officer who attempted to enter his house by virtue 
of a warrant from the commissioners, the ordinary judges 
declared that he was not liable to prosecution, and dis- 
missed him from the bar." Simpson's Case, before the 
judges of assize in Northamptonshire, 42d Elizab. 4th 
Inst. 332. See for more authorities, Brodie, i. p. 198. 
See also Hallam, Const. Hist, of England, vol. i. p. 527 
& seq. It was no excuse for Strafford, or the ministers 
of Charles X of France, for their illegal acts, that the 
king personally had ordered it thus. So far is this true 
principle carried, that an individual, upon whom a con- 
stable officially called in the street to assist him in the 
arrest of a person, was held answerable, when it was 
found that the constable had no rkht to make the arrest. 
It lately happened in the city of New York. Sacred as 
the principle is, the application of it in this particular 
case, exacts an impossibility. For a citizen cannot, 
when thus called upon, ascertain whether the constable 
is performing a lawful act. But a law ought to be pos- 
sible ; it is one of its very first requisites. 

XL VII. 6. Man cannot be man without communion, 
utterance, be this by sound or sign, and be this sign 
transitory (as the sign made by the deaf and dumb), or 
enduring (by writing). We cannot exist physically, 
intellectually and morally, without utterance ; our whole 
existence as human beings depends upon it. We can- 



sec. xlvii.] Primordial Rights. 209 

not imagine a human society consisting of beings deaf, 
dumb and blind, as the one of whom Mr. Stuart, the 
British philosopher, gave an account, and as there is now 
one in the institution for the blind at Hartford, Conn, 
(named Julia Brace). Mankind could never have ad- 
vanced, had not the members of the existing genera- 
tions held free converse among themselves, and had 
not, in the course of time, one generation learned to 
commune with the next, or people, separated by space, 
to exchange their ideas. The more the earth became 
peopled, the more the stage of action, knowledge and 
intercourse became extended, and the more the collec- 
tion of facts and reasoning upon them, required com- 
munications too extensive for mere oral converse, the 
more writing became necessary, and the more know- 
ledge of what has been written became indispensable. 
Still, writing is nothing but utterance and converse, yet 
of the utmost importance to mankind, because without 
it man could never have shaken off the thraldom of dis- 
torting tradition ; knowledge could not have accumula- 
ted in any high degree, it could not have descended by 
way of inheritance from one to the other. Interfering 
with writing, therefore, is interfering with thought, and, 
according to a German homely but significant proverb, 
' thoughts are duty free.' Utterance is nothing more 
than the manifestation of thought or feeling. And is 
the mind not absolutely free of the state ? Where is 
the jural relation in which it stands to others, without 
which the state cannot touch it ? Hence the inadmissi- 
bility of any authority interfering with scientific and re- 
ligious utterances, publications, if no right of others is 
infringed. The state shall not interfere with thought. 
No authority, man, or body, has a right to disturb my 
vol* i. 27 



210 The State. [book ii. 

communion with fellow-men by whatever means of ut- 
terance I choose. To establish censorship, amounts to 
nothing less than to ordain that no man shall leave his 
house, or shall give to any one to eat, or offer anything 
for exchange, if he has not previously obtained permis- 
sion to do so, by proving that he has no criminal inten- 
tion. Censorship disturbs me most essentially in my 
jural relations and the first foundation of them, namely, 
that I must be allowed to do what harms no one, and 
interfered with only when I do harm. Locomotion is 
certainly a primordial right, without which mankind 
could not exist ; yet if I, for one, were forced to choose 
between locomotion and converse, I would prefer the 
latter, for I might contrive to live penned up in a room, 
rather than without free communion with other minds. 
The state has no right either to interfere with what I 
shall read (for instance by establishing authorities on the 
frontiers to inspect all imported books, whether they are 
fit to enter or not, as is the case on the Austrian frontier), 
or with what I shall say by way of writing to others ; but 
it has the bounden duty to protect this my primordial 
right, and wait till I abuse it, as it does not tie my arms, 
to prevent theft or murder, but waits until the use of 
these limbs has been abused. Liberty of the press is in 
principle as proper or improper a term as liberty of 
breathing, talking, walking, thinking, working w T ould be, 
and its being guaranteed in the fundamental laws of na- 
tions is explainable only by the continued efforts of 
power to restrain it, which are more frequently success- 
ful because they do not interfere with the physical 
interest of man, nor directly with the great number; yet 
it is of equally essential importance, because man is man 
by his intellect more so than by his body, and it affects 



sec. xl vii.] Primordial Right. 211 

equally, though not so directly, the welfare of the whole 
man. All nations, therefore, advanced in civil liberty, 
have returned to it ; it is a return, and not the estab- 
lishing of a new thing, as has been shown, for the inter- 
ference with it is an abridgment of the right of com- 
munion. 

It is not said that utterance, though necessary for me 
in my character as man, may not be regulated or sus- 
pended. Though I have as man the indisputable right 
of utterance which no power on earth has a right to 
wrest from me, any more than to cut off my arms, yet 
I have not the right to use it everywhere and on all 
occasions. So does my right of locomotion not entitle 
me to go where I choose, into my neighbor's field, 
closet, &c. I am not allowed to speak loud in a 
church, in a deliberative assembly. When the Dutch 
Colonel Haraugiere, in 1590, hid himself with his 
seventy men on board the peat vessel, to be dragged 
into the fortress of Breda, occupied by the Spaniards, 
he had a right to declare that a single word uttered 
should be instantly punished with death. The same 
order, if I remember right, is said to have been given 
by General Wayne when he marched to capture Stony 
Point. It is done not unfrequently. So may utterance 
by writing be suspended or limited ; for instance, who 
would deny the commandant of a besieged fortress 
this right, if he was afraid of a mutinous spirit 1 The 
same may take place in a rebellious province, under 
certain circumstances in a whole country in a time of 
war. But all these are exceptions, as by way of 
exception the police may examine my rooms, whether 
I ventilate them properly, for instance, in times of a 
general infection. 



212 The State, [book ii. 

XL VIII. 7. As my intellect has its primordial right, 
so my moral character. The state has to protect virtue, 
hence all immoral laws are ipso facto invalid, be they 
customary or not, the state or any authority cannot re- 
quire an immoral act or permit a crime ; and each one 
has a right to protect his morality. And if it had been 
the custom of centuries for feudal lords to claim the jus 
primce noctis (and what unrighteousness has not been 
termed at times a right?) or marchetta mulierum, any 
bride or her father, brother or husband, for her, had 
the undoubted right to defend her virtue even at the 
risk of the life of the offender. Man's virtue is his very 
self, and the state is there to protect it, all customs, 
laws and statutes, commands and injunctions, however 
old or from whatever authority or however long acqui- 
esced in, to the contrary ; for the primordial rights 
reappear with each human being qua man alone, and 
not by way of charter, grant, or specific relation to the 
state, in all their native power and importance. It may 
not be expedient at times to insist on them. A hus- 
band, whose bride was thus claimed, might think that 
resistance would inevitably lead to his death and a con- 
sequent still greater exposure of his bride. This is 
for him to calculate ; I speak of right only. See the 
highly immoral laws in Blount's Fragmenta Antiquitatis 
or Antient Tenures of Land, new edition, by Joseph 
Beckwith, York, 1784, page 124, and other passages. 
Philip II could not rightfully authorise any person to 
murder the Prince of Orange, still less offer a reward 
and protection against all future molestation, nor could 
Charles II authorise the assassination of Cromwell. No 
king can order any person to murder another, as Philip 
ordered Perez to murder Escovedo without process, on 



sec. xlix.] Primordial Right. 213 

account of weighty reasons respecting himself (the 
king) and the crown, and well-proved facts. Napoleon 
could not order courts-martial to find persons guilty as 
he has been charged with doing. 

XLIX. 8. As a moral being, obliged by nature to live 
in society, every one has a right of honor or reputation, 
that is, the acknowledgment of his worth as a man and 
citizen must be protected, for upon it his existence, and 
whole relation to society, to which he has a primordial 
claim, depends. The worth of an individual may be 
strictly moral (as man) political (as citizen) or consist 
in his capacity, or in his general fitness for social inter- 
course. The state therefore has the duty, because 
each one has a natural claim to it, to protect the ac- 
knowledgment of each one's human and civil worth by 
the omission of all actions, which may convey the dec- 
laration, that the individual in question is unworthy of 
esteem as a man or citizen. (Feuerbach, Manual of 
Penal Law, § 271). As, however, free utterance is 
an equally important right, and as society and conse- 
quently each individual have the greatest interest in 
free discussion, without which no advance in civilisation 
is possible, it is exceedingly difficult, to ascertain the 
precise limits between the two, and various nations 
have of course differed very materially upon this point. 
The following are some general rules : a. The less a 
charge against the honor or reputation of an individual, 
carries with it the possible remedy, the more does the 
individual stand in need of protection against it. All 
slander belongs to this class, because it is against the 
private character of a person, and it lies in the nature 
of things that publicity cannot prove the contrary. A 



214 The State. [book ii. 

woman's chastity is her honor ; attacks against it impe- 
ratively require protection ; but if the opposition charge 
a minister with selfish, even traitorous designs in these 
general terms, he may leave it safely to the publicity of 
his actions to prove the contrary, b. If the state takes 
away the means by which otherwise an individual 
would repel charges against his honor, it is the more 
bound to protect, for instance it ought to punish the 
utterance of such epithets as are considered dishonor- 
able by the society, called injuria in the European con- 
tinental law. The English law acknowledges this ne- 
cessity but in a very limited degree. The Roman law 
distinctly protects the civil honor or dignity as such. 
The jurist Callistratus defines the existimatio as being 
status UIcesce dignitatis, legibus ac moribus comprobatus. 
(Theodore Marezoll on Civil Honor, in German, Gies- 
sen, 1824.) c. The more an attack upon a man is di- 
rected against his capacity, skill or performance of duty 
as the means of maintaining himself or acquiring pro- 
perty, the more it requires the action of the state. This 
is perhaps chiefly on the ground that the state shall 
protect my property and myself in the process of ac- 
quiring it. Yet the previous rule holds, that if the charge 
carries its possible remedy with it, it does not so much 
or not at all require public action. If a person charges 
a physician with being a quack, it is a serious attack ; 
but if a reviewer says that a physician, in the reviewed 
book, has shown himself a quack, and gives the facts 
by which he thinks to support his charge, the same 
necessity does not exist. A professor of a univer- 
sity depends for support upon his capacity, but if a 
person says he knows no more than his freshmen, he 
has ample means of proving the contrary, d. The 



sec. l.] Primordial Right. 215 

more definite the charge, and the more it implies a 
crime or gross immorality, the more it requires to be 
repressed. It is a very serious charge against a whole 
cabinet of the English crown, that all the members are 
* shabby, silly, truckling and fomenting revolt,' as 
thousands of times the present Melbourn administra- 
tion have been called ; but what is shabby, silly ? As 
to fomenting revolt, their conduct is public, let them 
abide by it. But when Mr. O'Connell publicly charged 
the tory committees of the commons with ' foul perjury,' 
they were right to take up the matter, if they felt a clear 
conscience. Had he stated at once why he charged 
them so, the case would not have been so urgent, ac- 
cording to the rule, given as the first (1). e. Charges 
which interfere with the right of free social intercourse 
require public action. If a person say of another that 
he is afflicted with a malady which renders him unfit 
for contact, it is doubtless most serious slander. 

(1) See however Mr. O'Connell's Speech, after having been 
reprimanded by the speaker, according to a vote of the house, on 
February 28, 1838. 

L. 9. We have seen how important an element of all 
that is human, the family is, and a man has a right to be 
protected and not interfered with in his sacred family 
relations. Who is destined by nature to be the pro- 
tector, cherisher and fostering guardian over the body, 
mind and virtue of children if not the parents? A 
Greek merchant told me, during my sojourn in Greece, 
that AH Pacha, of Janina, sent once for his daughter, 
' because he had seen her on a ride, and she had 
pleased him,' — of course, that she was to be installed 



216 The State. [book ii. 

in his seraglio, and, as was the custom, to be married 
after some years to one of his menials. The father 
would have had the undoubted right to defend his 
daughter in any way whatsoever; the question could 
only be as to expediency. If the authorities forcibly 
carry away children from their parents to educate them 
in some specific religion, and on no ground of unfitness 
of the parents for their important task, they have the 
right to defend their offspring by any means whatso- 
ever, though they may abstain from using it, not to ex- 
pose the life of the children or their own, necessary for 
the support of their children. 

LI. 10. Theodoric writes to the Roman senate, 're- 
ligionem imperare non possumus, quia nemo cogitur ut 
credat invitus.' If religion means all that appertains to 
man's relation to God, it is evident that as it is not an 
individual relation to any other human individual, it 
cannot, in its very essence, ever become a matter of the 
state, because the state has to do with jural relations 
only, and these must exist between man and man ; 
there is no other relation of right imaginable. (Pro- 
perty, a relation between an individual and a thing, be- 
comes a matter of right, a jural relation only, inasmuch 
as others are excluded from that property — it signifies 
therefore again a relation between two individuals). 
The state cannot, even were it to try, seize upon reli- 
gion. Properly speaking, therefore, liberty of conscience 
has no meaning ; the state cannot reach it. We might 
as well say liberty of taste. How can the state reach 
my taste ? Unfortunately, however, the term has ac- 
quired but too definite a meaning ! Facts and out- 
ward actions are the only things for which the state has 



sec. li.] Primordial Rights. 217 

an organ ; how, then, can it approach the thoughts and 
feelings ? Hallam, note to page 308, vol. L, speaks of 
the ' false and mischievous position of Hooker,' whom, 
however, he justly values for his writings, 'that the 
church and commonwealth are but different denomina- 
tions of the same society.' 

It is different respecting the publicly professed creeds, 
modes of worship and churches, that is, religious socie- 
ties of the same doctrine, discipline and government. 
These are tangible by the state ; they can claim protec- 
tion if innocuous, or may be interfered with if they 
interfere with the jural relations of others ; for instance, 
if they should palpably promote immorality. If the 
English thought it right to acknowledge Elizabeth as 
their queen, they were right to enact laws against pub- 
lic Roman catholic worship, and the public profession of 
its creed ; not because it was Roman catholic religion — 
it is detestable, and criminal for the state to interfere 
with religion as religion — but on strictly civil grounds ; 
because the pope had excommunicated the queen, 
because he had called upon the catholic princes to 
conquer her lands, had absolved the English from their 
allegiance ; because the catholics were known to ac- 
knowledge him as their spiritual chief, to consider Mary 
Stuart as lawful queen of England ; because it was the 
age when assassinations on religious grounds were ex- 
tolled (the murderers of Orange, Henry III and Henry 
IV were praised and publicly compared to characters 
of the old testament) ; because fearful slaughters had 
been perpetrated, and a renewed and most vigorous re- 
action in favor of Catholicism had taken place all over 
Europe. See, for the last remark, Ranke's excellent 
work, The Popes, their Church and State, vol ii. I do 

vol. i. 28 



218 The State. [book n. 

not say by any means, that the laws were good in detail, 
nor can we justify persecution for Catholicism, for this 
implies that it is for religion and not for infringed rights. 
It was wrong, therefore, to put men on their oaths, in 
order to find out whether they were or were not catholics, 
because merely believing one dogma or the other is not 
a thing tangible by the state. 

The principle which the catholics, and, after them, 
the protestants have always professed, that the church 
has nothing to do with the heretic except to excommu- 
nicate him, and to hand him over to the secular au- 
thority, which may punish him if it chooses, was right 
on the side of the church. But if so, whence does the 
secular authority derive the right to punish the heretic, 
qua heretic ? As such he has been already excommu- 
nicated. We all know how hypocritically this princi- 
ple was acted out ! History weeps over the slaughtered 
millions, the vast multitudes of homeless exiles, which 
she has had to record against catholic and protestant. 
Whenever the state has felt itself obliged, and has 
had the power to act upon religion (and not on 
worship, or church matters, in as far as they can be- 
come matters of jural relations), misery has been the 
consequence. Philip II, and the people of Spain in 
general, always considered the crown of Spain as not 
purely political but possessing a strong religious ele- 
ment. He was the propagator of catholic faith in for- 
eign regions, its support or the extirpator of heresy in 
Europe ; and what has been the consequence ? The 
Netherlands were drenched with blood for years and 
years ; murder and rapine ruled ; Spain, where many 
were inclined toward protestantism (1), was crippled 
in all her energy, mental and industrial, by the inqui- 



sec. li.] Primordial Rights. 219 

sition, which degraded a noble nation to such depth, 
that it seems it can be roused but by one solitary agent, 
religious fanaticism ; population diminished, frankness of 
character gone, energy enervated, knowledge oppressed, 
morality lowered, and unfitted, from mere exhaustion, not 
from tumultuous ebullitions of strength, to settle into 
peace. Her colonies, like the mother country, without 
character or energy, knowledge or manliness, turning in 
weakness from one change to another. It was a melan- 
choly time indeed ! Everything seemed to turn upon 
religion, everywhere were dogmas taken for religion ; 
everywhere busy hatred and discord, bitter controversy, 
uncharitable accusations and wilful misunderstanding — 
religious -and civil wars everywhere. A time when 
people thought they had obtained somewhat of religious 
liberty, when the peace of religion, between the Ger- 
man catholics and protestants, in 1555, guaranteed to 
all who should differ in religion from the prince of the 
respective country, protection against personal persecu- 
tion and the right to emigrate, after selling their pro- 
perty (in which, however, they were often exceedingly 
oppressed) ! A period when the government of Geneva 
burnt Servetus, for not entertaining the common opinion 
respecting the trinity, prompted in doing so by Calvin, 
and approved of by nearly the whole Swiss protest- 
ant clergy; when even a Melancthon, known for the 
mildness of his character, expressed his assent to this 
evil deed (see Calv. Epist. ed. Amstel. p. 92, alia ed. 
N. 187), and when Luther was one of the very few 
prominent men who strongly opposed the killing for 
heresy on any account (2), but when Beza, to justify 
Calvin, published his De Haereticis a civili Magistratu 
puniendis, and a translation of it was afterwards laid 



220 The State. [book ii. 

before the magistrates of Friesland by some Calvinist 
ministers, insisting on the adoption of its principles — 
namely, the killing of heretics — against the inoffensive 
Arminians because they could not but partially adopt 
Calvin's doctrine of predestination (Brandt Historie der 
Reformatie in de Nederlanden II. D. Bl. 9-13), and 
when the Calvinists, in turn, were oppressed in Saxony 
by the Lutherans, and people persecuted for crypto- 
calvinism! The age when an Edward Coke, in the 
very debates on the petition of rights, which was to 
erect an insuperable bulwark around personal liberty, 
could excuse the imprisonment for life of the children 
of the Irish rebels, in the tower, by saying that it had 
served for their salvation, because otherwise they would 
have been catholics ! When neither the church of 
England or the presbyterians, not one sect sufficiently 
large to claim power at all, could elevate itself above 
dogmatic exclusiveness and the consequent spirit of 
persecution and ecclesiastic arrogance. 

(1) The Venetian ambassador in Spain — and the Venetian am- 
bassadors formed at that time a class of the shrewdest observers 
and most faithful reporters to their government — writes home, un- 
der date of August 25, 1562, "I assure your highness, no religious 
movement on a large scale would be desirable for this country : 
there are many who long for a change of religion." This, and 
extracts of other reports in Ranke, as above, vol. ii. p. 21. The 
inquisition, therefore, became more active. There was much pro- 
testantism in the south of France. 

(2) Luther wrote : Auctoritate ejus statuti, impii Magistratus 
pseudoprophetas et haereticos fecerunt quosquos voluerunt. Idem 
sequuturum esse timeo et apud nostros ; si semel uno exemplo 
licitum probari poterit, seductores esse occidendos, cum adhuc 
apud Papistas videamus hujus insituti abusu innocentem sanguinem 
fundi pro nocente. Quare mdIo?nodo possum admiitcrc, falsos doc- 
tores occidi ; satis est eos relegare, qua poena si posteri abuti vo- 



sec. lii.] Primordial Rights. 221 

lent, mitius tamen peccabant et sibi tantum nocebunt. De Wette, 
Letters, III, 1013. 

LII. 11. Property, or, to use a term more fitted, 
because more comprehensive, acquisition, by which I 
mean all a man owns, acquires, and the means where- 
with he acquires, that is, labor, skill and exchange. 
Every man has a right, because it is his bounden duty, to 
maintain himself and his family, he has a fair share in 
the means of support offered by nature, and the right of 
acquiring property in the various ways indicated above, 
where I treated of property, because appropriation, 
acquisition, properly belongs to his nature. I have a 
primordial right to use my labor as I choose, if I do not 
thereby transgress the rights of others, and the state must 
neither disturb me in this lawful pursuit, nor allow others 
to disturb me,jfor instance, by prescribing to me, direct- 
ly or indirectly, the limits below or above which I ought 
not to go, as the trades'-unions of late have done. ^Ex- 
change is one of the most lawful, jiecessary and natural 
means of acquisition, founded in the variety of soil, 
clime, genius of people, agents of nature, &lc, and one 
of the first and most effective means of civilisation. Ex- 
change lies in the great order of things ; and a disturb- 
ance of it is always productive of injurious consequences. 
It ought never to be interfered with any farther than 
is absolutely necessary, but never to promote, as it is 
called, the interests of the many. No one has a right 
to do it, be it the daily and hourly exchange of labor 
and property in a community, or between nations by 
way of extensive commerce. Perhaps nine tenths of 
all the wars of the last three centuries have arisen out 
of disregard of this primitive right and that of religion. 



222 The State. [book ii. 

Society is deeply interested in the protection of the 
right of property, because the whole progress of society 
is connected with it. Fraser, in his Persia (1), gives an 
account of a china-maker, who had made some improve- 
ment in china ware, and was sent for by the court to 
make some for the shah, and of course all the courtiers. 
To save himself, he bribed the officer who was to carry 
him, to report that he was not the man, because his go- 
ing to court and making china for the court, would have 
ruined him, and he forswore attempting any further im- 
provements. It is a striking anecdote, but in point. 
Mr. Elphinstone, in the work already quoted, mentions, 
on p. 255, that a man at Peshawer, a very large town 
in Afghanistan, wished to remit his money to India, 
and came by night to his secretary to count it out. 
* These precautions,' adds the author, * were not taken 
from any present danger, so much as with the view 
to futurity.' 

There is no right more essential to man, as man, than 
that of acquisition — property — yet none calls for more 
modification and regulation by the state, because it re- 
lates more than any other right to the material world, 
and more affects in its enjoyment the jural relations of 
others. All may live at the same time, all follow their 
conscience in matters of religion, but one only can own 
the same piece of land. \ The legislation of every coun- 
try, therefore, has necessarily acted upon the subject ; 
nor has property ever been considered as a right which 
could on no consideration be abolished and remodeled. 
Lycurgus made a new division ; the French made a 
new distribution of a large portion of landed property. 
It is easily explainable ; every one has an absolute right 
of acquisition by labor, but there are many other means 



sec. liii.] Primordial Rights. 223 

of acquisition, not absolutely founded in nature, but 
found to be the best for the welfare of society. These, 
of course, may be changed, for instance, the laws of in- 
heritance ; everywhere they are entirely dependent upon 
legislation. Nowhere, however, except in the rude des- 
potisms of force, is the acquisition by one's own labor 
interfered with on the score of preventing too large 
fortunes, though their accumulation by other means is 
interfered with, for instance, in England, by leaving a for- 
tune intangible for too long a series of years, by adding 
interest to interest. (Peter Thelluson's curious Will, which 
occasioned the passing of 39th and 40th Geo. Ill, 98). 

(1) Vol. xv. of Edinburgh Cabinet Library. On page 312, he 
relates another anecdote, not entirely out of place here. A mer- 
chant had himself daily bastinadoed, and finally could bear a thou- 
sand strokes with a stick, so that he might be well accustomed to 
it, if the governor should send for him, to beat out the confession 
where his treasures were hid. 

LIII. 12. Lastly, the individual has the right to move 
where he pleases ; the right of personal liberty, as well 
as of exchange, would already sufficiently warrant this 
right, the right of emigration, of expatriation. Next to 
my life, is the place where I live, where I exchange my 
labor, the most important, to me, of all my rights which 
touch the physical world. Special circumstances may 
limit this right, as that of utterance, but it can only be by 
way of exception, notwithstanding all that has been said 
to the contrary on the ground of natural allegiance — an 
idea which necessarily arose out of other misconceptions 
of the relation between the king and his subject. A 
state would have the right to declare, that every native 
of its country, caught in arms against it, should suffer 



224 The State. [book ii. 

death, on the score of danger, for instance, suppose the 
United States to be at war with Mexico. The latter 
country would doubtless endeavor to obtain American 
captains to command her ships, and the United States 
would have a right to declare that every native Ameri- 
can made prisoner in serving Mexico, should die ; a law 
which would be borne out by the feeling of every true 
heart, to whom it is repugnant to fight against the coun- 
try that bore him. But take another case. Suppose a 
Canadian has resided twenty years in the United States, 
and been its active citizen ; a war breaks out between 
Great Britain and the United States ; suppose, in addi- 
tion, Great Britain is the wrongful assailer ; an English 
army attacks the place where the emigrated Canadian 
resides — shall he not defend his country, nay, may not 
his very feelings be entirely engaged for the United 
States ? There is no natural relation between subject 
and monarch, any more than that it is natural for man to 
live in society, in a state, and that the state has power 
over him for all legitimate purposes, that is, to protect 
him in its widest sense, not to interfere with him for any 
other purpose than to protect others at the same time, and 
of course it must be one of the first of all rights of a free 
being to choose that place and that society, where he 
thinks he may best obtain his individual objects. It has 
been asked by superficial thinkers, Is it man's highest 
object to live well ? shall he leave his country, the mo- 
ment he thinks he can find better food somewhere else ? 
No, man has far nobler objects than merely good living ; 
but before all, he must obtain the common comforts of 
life for himself and family, as the basis for higher things, 
as he has to take care of health, not as the object, but 
the necessary requisite for a sound life, a life that answer- 



sec. li v.] Emigration. 225 

its purposes. If over-population or over-taxation grind 
down a man, so that he can- hardly obtain food for his 
family, still less elevate them morally and intellectually, 
and he has an opportunity to remove to an unoccupied 
virgin soil, which, like a kindly friend, readily answers 
to every exertion with ungrudging abundance — shall 
such a man linger out a life of wretchedness, and bring 
up his children in sloth and ignorance, that is, prepare 
and fit them first for vice and secondly for crime, merely 
to satisfy a theory; shall he forget his most sacred 
duties toward himself and his family, that is, to toil hard 
to become independent, a noble object to every man — 
because some conceive it unpoetical, to leave the native 
soil for a better one ; though there is poetry in an 
emigrant, who goes with nothing but a willing arm and 
his plough, a conqueror, to the West ? It is the order 
of things to emigrate, but if a man has a right to emi- 
grate, he has likewise the right of expatriation — for man 
ought to be a citizen, according to his destiny. I 
have spoken already of the fact, that no nation was 
more given to emigration, and thereby did confer incal- 
culable advantages upon mankind, than the Greeks, yet 
who loved their country more ? 



fa 



IV. I shall return to the subject of natural allegi- 
ance, when I speak of patriotism. Here I would men- 
tion that if natural means material, then where is that 
relation ? The son is naturally related to his father, and 
that relation cannot possibly be dissolved, but that of 
allegiance has been dissolved a thousand times. Why 
is there an oath of allegiance ? We do not swear to 
be the sons of our mothers, and above all, why have all 
oaths of allegiance ever been held, when necessity arose, 
vol. i. 29 



226 The State. [book ii. 

as conditional only? (1) When an English king dies, 
his queen yet living, and rio direct descendant of the 
king succeeds, allegiance is sworn to the new monarch 
saving the rights of any issue of the late king, or in 
other words, on condition that within proper time the 
queen dowager do not give birth to a direct successor, 
as was the case respecting queen Victoria. See proc- 
lamation dated Kensington, June 20, 1837. Does this 
not abundantly prove that allegiance is a political and 
not a natural relation, if the latter word be used in 
contradistinction to the former, though I know that 
this goes directly against lord Coke, where this opinion 
is called the ' error of the Spencers, that the homage 
and oath of legeance, was more by reason of the king's 
crown (that is of his politique capacity) than by reason 
of the person of the king, which was condemned by 
two parliaments, one in the reign of E. 2, called Exilium 
Hugonis le Spencer, and the other in 1 E. cap. I." 
(Calvin's Case, Coke's Reports, part VII). The old 
English jurists speak of a law of nature above parlia- 
ment — and so no doubt it is — according to which exists 
the indissoluble tie between subject and liege lord or 
lady, so that outlawry could not even affect this natural 
tie. See the same case in Coke's Reports. British 
history, as we all know, abundantly proves the contrary, 
for the tie has been dissolved. Blackstone (I, 369) 
says, ' Natural allegiance is therefore a debt of grati- 
tude ; which cannot be forfeited, cancelled, or altered, 
by any change of time, place or circumstance, nor by 
anything but the united concurrence of the legislature." 
Not to speak here of the unphilosophical foundation of 
a general civil obligation, and not a specific one, upon 
the basis of gratitude — for suppose, the citizen feels no 



sec. liv.] Allegiance. 227 

gratitude, and is right in not feeling it, because nothing 
has been bestowed upon him to be thankful for, as cer- 
tainly may be the case, if the monarch does not protect, 
but, on the contrary, strives to undermine the laws — se- 
condly, that gratitude is altogether a feeling over which 
the state has no control, and therefore no power to 
demand it; thirdly, that this gratitude for protection 
would be owing not to the king's person, for how can he 
personally protect me, but to the state, in and by which he 
is king — not to speak of all these objections, Blackstone 
contradicts himself, if he means by natural allegiance, 
anything like that claimed by the old British lawyers, 
because in that case it indicates a relation between two 
individuals, indelibly stamped upon both by nature, 
that is, by birth ; yet the commentator says in the 
same sentence that allegiance may be dissolved by the 
united concurrence of the legislature. Can parliament 
declare a man not to be the brother of his father's son ; 
can it declare a native Englishman not to be a native 
Englishman ? Natural allegiance without unconditional 
allegiance is a logical absurdity, yet, surely, this is in the 
eye of every Briton a political heresy. For if the subject 
owes allegiance only so long as the monarch does not 
destroy instead of protecting the objects of the state — 
and no one will now be so hardy as to maintain that 
subjects must submit without resistance to a Helioga- 
balus — then allegiance to a monarch is a thing made 
by law, which law, it is allowed, may rest on ancient 
custom, yet it can be unmade ; and what is more im- 
portant it is to the crown, that is to the state, not to the 
person of the king. Tf not, how is it with the allegi- 
ance of the French, who have sworn it within the last 
forty years to ever so many persons and governments ? 



228 The State. [book ii. 

The argument would have been much more plausible, 
if natural allegiance had been represented as depending 
upon our nativity within the bosom of the particular 
nation, and through it, connected with the monarch — 
in short, if national allegiance had been claimed, and 
the deep-rooted feeling of every true heart toward the 
nation to which we belong by blood, would have af- 
forded a far better foundation for allegiance than the 
very feebie one of gratitude-; for our love to the coun- 
ty of our birth outlives in many instances our grati- 
tude. The meanest factory boy in Manchester may 
still feel attached to England, but it would be very 
difficult to point out what reason he has for gratitude. 
Gratitude is a feeling which can be called forth only by 
bounties over and above what I deserve. Does the 
state shower these bounties upon him? Does the 
state do more than it is absolutely bound to do ? Is he 
not quit with the state as to gratitude, every evening, 
after an unrequited day of overwhelming labor ? Who 
is bound to be grateful, the state, or the poor man who 
has always lived by his work, paid heavy taxes, and 
finally is pressed into sea-service, where he is crippled? 
The national allegiance cannot, according to English 
law and history, be severed, but the allegiance to the 
monarch can. See Patriotism, where more on national 
allegiance as a primitive element of society will be 
found. In Macdonald's case in 1746, before chief 
justice Lee, the indissolubleness of British allegiance 
was maintained. For the American doctrine of allegi- 
ance see Kent's Comment. II. page 41 &, seq. Im- 
portant is Mr. Marshall's (afterwards chief justice of 
the United States) speech in the house of represen- 
tatives, on the case of Robbins, who had been claimed 



sec. lv.] Absolute Rights. 229 

by the British, given up by president J. Adams, and 
executed by the former. 

Compare with what has been stated on these important subjects, 
Hugo Grotius, Puffendorf, Chitty, Vattel, Blackstone, Kent, and 
for the legal references, D. Hoffman's comprehensive work, 
Course of .Legal Stud}', 2d edition, Baltimore, 1836. 

(1) Mr. Raumer, whom I quote here, because he is a decided 
royalist — not, indeed, an absolutist — in speaking of the Portuguese 
revolution, by which the duke of Braganza was made king, against 
Philip II of Spain, and after having stated the sound reasons of 
the Portuguese for breaking their allegiance, adds as his own 
remarks : " History shows there is a measure of tyranny from 
above downward, to suffer slavishly which, becomes a crime." 
To avoid misquoting I continue his remarks : " And that on 
the other hand, at times, such a desire of opposition, disobedience 
and revolt becomes so prevalent among nations, that no govern- 
ment remains possible." History of Europe, &c. vol. V, page 474. 

LV. The rights, which I have called primordial, or 
some of them, have been termed by others absolute 
rights. See 1 Blackstone, 124. This is not a very apt 
term, for as the sequel of this section will show there 
are no absolute rights, if this term mean either that 
they cannot be abridged, or that men cannot agree to 
give them up. Even the absolute right to life has been 
given up. The custom of drawing lots for being sac- 
rificed to some deity, has existed with various nations; 
and the doomed person was willing to be sacrificed. 
Though in many instances the wives of deceased 
Hindoos were induced by others to allow themselves 
to be burnt with the body of their late husband, yet 
there are many instances of wives resisting all induce- 
ment not to be burnt. Still less apt appears the term 
when we consider that all nations allow the state to 
force me to expose my life. But the term is owing to 



230 The State. [book ii. 

that mistaken notion of a state of nature. Blackstone 
says, absolute rights are ' such as would belong to their 
persons merely in a state of nature, and which every 
man is entitled to enjoy, whether out of society or in 
it." There is a strange confusion of ideas — rights in 
a state of nature ! What is there, a man may not do 
if out of society ? And again, ' which every man is 
entitled to enjoy. 5 A state of nature, and yet entitled, 
which means having a title to ; but who gives the title ? 
So much for these fictions. Man never lived in this 
state of nature, because he never lived or could live 
without law in however incipient a stage of civil deve- 
lopment this might be. Fictions make matters under 
hand apparently very easy ; but they revenge them- 
selves, and we are unable to eliminate them again as we 
may do in mathematics with assumed terms. 

Others have used the term inalienable rights, an 
expression which would not have been so freely adopt- 
ed, had not those who used it started from the idea 
that the state is produced by contract, in which cer- 
tain rights are given up for higher considerations, and, 
altogether, had not those who renewed the more pro- 
found inquiries into the true character of government, 
found already governments with extravagant claims or 
which had absorbed almost all liberty already existing, 
when it appeared necessary to show that certain rights 
could not be alienated. But the term is liable to some 
objections. Does inalienable mean that those rights 
cannot be alienated ? Facts speak against it. We see 
people submit to the privation of all enumerated rights. 
No right is more founded in nature than that of the 
father to protect his child. Yet Mr. Norris in his 
journey to the court of the king of Dahomy, relates 



secj lv.] Inalienable Rights. 231 

that children are taken from their mothers, and placed 
in distant villages, to destroy all family feeling. Is any 
right more sacred than that of the husband to protect 
the chastity of his wife ? Yet Mr. Elphinstone (as 
quoted previously, page 483), informs us that '■ one of 
the laws of Yaza forbids adultery. The inhabitants 
of Cariader applied for and received an exemption on 
account of their old usage (called Kooroon Bistaun) 
of lending their wives to their guests.' What can be 
more undoubted than that I have a right to benefit by 
the communion with other minds, that no earthly power 
exists which has a right to interfere with my thoughts 
and their development ; yet in Austria are not only 
certain books prohibited, but officers on the frontier 
may refuse the importation of any book they deem 
unfit, and the people do not seem to consider it as any 
peculiar hardship. If any right be inherent, it is that 
of life, yet when the sultan formerly sent a silken cord 
to his vizier, he kissed it and hung himself, and made 
no effort to defend his life. Now suppose the cord 
had not been sent for an alleged crime, surely that 
vizier had alienated the right of life. Does inalienable 
right mean that which the people have a right at any 
moment to recover? The people have the right to 
recover or establish any right whatsoever, but they have 
frequently not the means. What right is there that 
could possibly be lost by way of compensation for 
benefits supposed to be derived from a ruling dynasty ? 
Nations do not sell themselves as property. Does it 
mean those rights which ought not to be alienated? 
No right ought to be alienated which is necessary for 
the well-being of the people, nor is any right irrevo- 
cably alienated, nor can it ever be so. 



232 The State. [book ii. 

LVI. Be it repeated, primordial rights are those 
which flow directly from the nature of man inasmuch 
as he is a social being, rights which are of primordial 
importance and which present themselves the more dis- 
tinctly to the human mind and are acted out the more 
definitely in reality, the more mankind advance in civili- 
sation. It is on this account that the w T ord primordial 
has been preferred to indelible, indefeasible or inherent 
rights; for they are in periods of political transition oblite- 
rated, nor can they often be otherwise, and, what is more 
important, these latter names convey the idea, as if they 
were originally distinctly acknowledged, which is not the 
case. Imprescriptible is a better term ; they might be 
called essential rights, if essential w T ere understood to 
mean that they belong to the essence of the individual. 
They all flow from the great end of all political union, 
protection, which, of course, likewise presents itself with 
greater distinctness the more man advances in his civil 
progress. The state never ceases to protect ; even the 
blackest criminal, the moment before his head falls, is 
yet protected. It was a most fallacious argument that 
'frustra legis auxilium invocat qui in legem committit,' 
from the lex talionis, or, as St. John said before the 
lords, when he brought the bill of attainder against earl 
Strafford (April 29, 1641), "He that would not have 
had others to have a law r , why should he have any 
himself? Why should not that be done to him that 
himself would have done to others?" (1) Even some 
modern writers have erroneously endeavored to derive 
the punitory right of the state from the fact that the 
offender, by doing wrong, declares himself out of the 
jural society. (See, for instance, Fichte, Natural Law, 
vol. II, p. 95 &, seq., in Germ.) Nothing can be more 






sec. lvi.] Lynch Laic, so called. 233 

untenable in all its bearings. On the contrary, the state 
being essentially a jural society cannot possibly act ex- 
cept by law and upon jural relations, and in as far as the 
right of an individual is the condition of his union with 
other rational individuals, punishment is the right of the 
offender, however paradoxical this may sound at first, 
because we are accustomed to imagine under right, some 
specific privileges. State punishment is likewise the 
protection of the offender, who without it would be ex- 
posed to all, even the most extravagant modes of private 
redress. No offender would hesitate to acknowledge 
and claim state punishment as his right, if choice were 
left him between the state punishment, which, because 
it is state punishment, requires formal trial, on the one 
hand, and, on the other hand, those summary proceed- 
ings against criminals caught in flagrante delicto, which 
we find in perhaps all early codes, and sometimes ac- 
knowledged to a very late period (Blackstone, IV, 308), 
or to which an excited people sometimes return, when 
the regular trial appears too slow for their inflamed pas- 
sions, as has been the case in those riotous and illegal 
inflictions of death or other punishment, so unfortunately 
called Lynch law, in our own country. I say, unfortu- 
nately called Lynch law, for it is ever to be deplored, if 
any illegal procedure receives a regular and separate 
name of its own. By this very application of a technical 
term it assumes an air of systematised authority, which 
has an astonishing effect upon the multitude, and in 
fact upon most men. Give a separate and technically 
sounding name to a thing, and you take from it much 
of its harshness for the human ear. Many a member 
of trade's-unions in Scotland would not have been 
willing to commit outrages upon the person of his 

VOL.1. 30 



234 The State. [book ii. 

neighbors or even murder, had it not been called slat- 
ing, or by some other technical term. The same prin- 
ciple applies to errors in science, religion, the arts. 
(See also Blount's Law Diet. tit. Lidford-Law, and 
Blount Fragm. Antiqu., ed. of 1734, p. 327). 

The state does not act as state the moment it ceases 
to protect, that is, to act on jural relations. We see then 
likewise how void of meaning such phrases as 'the 
offended state,' ' the wrath of the state,' (' of a king ') 
are. By what organ, in what possible manner shall the 
state feel offended ? Individuals may feel offended, for 
the feeling of offence is personal. A king may be wrath- 
ful ; so much the worse for him ; he is not so as king, but 
as a private person ; the crown cannot be angry ; and all 
that men have been obliged to hear about offended 
majesty and the terribleness of a king's wrath, has 
arisen out of the unfortunate confusion of state and 
family, the crown and the individual who wears it, or 
was urged in order to cover acts of hatred and personal 
revenge in the monarch or some officers, with the garb 
of official revenge. Abject flatterers have not been 
wanting who openly pronounced or alluded to a simi- 
larity between the deity and the monarch in these acts 
of dreadful indiscriminate revenge, while the slavish 
flatterers or hypocritic deluders of the people, in their 
turn, pleased the revengeful passion of the multitude, 
and goaded it on to still greater excesses by telling 
them about the grandeur of a nation's revenge, not un- 
frequently seeking, in the very vastness of the slaughter, 
an element of grandeur which ennobled the revenge. 
When the devastating armies of the convention were 
sent out against the doomed cities of Lyons, Nantes, 
Bordeaux and Toulon, when but one problem seemed 






sec. xli.] State exempt from Passion. 235 

to occupy the many leaders and commanders, that of 
slaughtering the greatest number in the shortest time, 
in the most savage manner, the people were told that a 
nation's revenge was like the thunders of nature — terri- 
ble and indiscriminate. Not a day passed that long 
speeches on the revenge of the people were not deliv- 
ered in the convention, and what is ever more gratifying, 
to a heart maddened with passion, than a justification, a 
reason, nay a mere simile, that affords some plausible 
excuse for revenge. The state has nothing whatsoever 
to do with wrath, though the organs of the state may 
be wrathful ; wrath and revenge, whether in reference 
to monarchs or nations, are political absurdities, and 
every political absurdity is a cruelty in practice. It 
was a saying of the deepest import, when Charles V 
was asked, how it happened that at times he would 
show himself vexed at trifles but never at things of 
magnitude, and he answered, 'The person of kings 
may feel annoyed, not their office ' (la persona de los 
reyes se puede enojar, no el officio. Perez, Relaciones 
554). It applies equally to the people. They may be 
impassioned, they may be agitated by revenge like a 
roaring sea, but do not deceive thyself, whatever is 
done for revenge, remains the act of each individual as 
such, and no vote of a political body changes the matter, 
for the state knoweth not revenge ; it cannot know it. 

(1) State Trials, vol. Ill, p. 159, taken from 8 Rushworth, 675. 
Though I blame the argument, I do not wish to be misunder- 
stood as to the trial and sentence of Strafford. He deserved his 
fate. That we are now so happy as to be able to suffer ministers 
to live who conspire against the fundamental law, is no proof that 
it could then be done. Nor does the case of the ministers of 
Charles X of France sufficiently prove that it can always be done; 



236 The State. [hook u. 

but it is a proof — and civilised mankind may congratulate itself 
upon it, as one of the happiest events in the nineteenth century — 
that to grant them life is infinitely preferable in every way, if at 
all possible. The difficult case to which I allude takes place 
when the minister has a large, powerful faction attached to him 
personally, especially when he is a military leader of consummate 
talent, and civil war must be the consequence of mercy toward 
him. The difference between Strafford and Polignac was also 
this, that the former was a man not only of the highest talent, 
but of the highest mental energy — a man than whom no one could 
be imagined more fitted to be the defender of absolutism ; there 
was much that was great in Strafford. Polignac was considered 
daring on account of his folly only. Not one royalist looks up to 
him at present. Strafford, if set free, could not but be drawn by 
circumstances, even if it had been against his will, into the highest 
spheres of momentous action ; if imprisoned, all knew he would 
soon be freed. 

LVIT. Rights, it has been stated, can only exist be- 
tween men ; animals have no rights. Man, as we have 
seen in the first book, differs essentially from the ani- 
mal ; and a being which unites those essential qualities, 
enumerated there, is called man. As a practical rule, I 
believe it may be stated, that those beings, who in a 
sound state of body, speak or exchange, are men, com- 
munion and exchange of labor being the two most com- 
mon manifestations of reason. As soon, then, as we 
see one of these marks, we are bound to acknowledge 
certain rights in the subject. Be the individual ever so 
low, or the race to which he belongs ever so far remov- 
ed in capacity from ours, we have no right to kill him, 
for instance, like an animal, simply for our information 
or gratification. So sacred are the rights inherent in 
humanity, that we acknowledge them, though the dis- 
tinguishing marks from which they first were derived 
have vanished ; we esteem man even when nothing but 



sec. lviii.J Physical Self-Preservation. 237 

outward form remains. An idiot, in intellect far below 
some animals, cannot be killed at convenience, and 
though he may suffer night and day, though the be- 
holder may pray that his life may be taken away, we 
dare not do with him that in which several savage 
tribes consider themselves justified, merely on account 
of the advanced age of a parent. 

It is not here the place to investigate how far abso- 
lute necessity of physical self-preservation may justify 
one man, in disregarding all the rights of humanity in 
another, for instance, when shipwrecked people sacrifice 
by lot one from among them to give sustenance to the 
others. The positive law cannot reach these cases ; but 
who is there that lately perused the accounts of the 
several suffering parties, into which the merciless element 
had divided the few survivors of the many people on 
board the steamboat Pulaski, that did not rejoice at Mr. 
Heath's manful opposition to the proposal of casting lot, 
that one might be slaughtered for the rest ? Who has 
read, without moral loathing, the account of the half-breed 
Indian, one of the companions of captain Franklin, on 
one of his polar expeditions, who was strongly suspect- 
ed of having shot a member of the party, in order to 
obtain food for some days ? The law justly considers 
life as the first and most precious right ; but is death, 
after all, so horrid 1 Is it not better to die, than to feed 
on our own species ? 

LVIII. Yet though the distinction between man and 
brute has thus been distinctly drawn, comparative anato- 
my and physiology are establishing daily more clearly the 
fact, that all those beings comprehended under the vast 
term of human species, are not only morally or individ- 
ually distinguished from each other, but in a very mark- 



238 The State. [book ii. 

ed way physiologically, and as to their capacities by 
whole races, forming a gradual scale of superiority. 
The most peculiar skulls of the so-called Pre-Inca race, 
found in South America, are so entirely different from 
ours, that they alone show an essential difference of that 
race from ours. The Caffras, the Boushouannas (Bush- 
men), the Hottentots and the poor Papous, for instance, 
differ so materially in their anatomy and physiologic or- 
ganisation, from the races which comparative anatomy 
as well as the history of civilisation teach us, by conclu- 
sive facts, to consider as superior, that we should aban- 
don all truth, were we to deny the difference. There 
is probably no reflecting man, who was not painfully 
startled when he became first acquainted with these 
nevertheless imperative truths. We love to treat, in our 
theories and meditations, all men as absolutely equal ; 
but truth is truth, however it may militate with beloved, 
nay, generous theories ; and God is the God of truth. 
He must have had his allwise ends in creating these dif- 
ferent races, as he must have had his ends in creating 
those many tribes and races, who without light, without 
expansion of thought, or cultivation, have increased and 
vanished, or who continue to people so many parts of 
the globe, yet do no more than people them, tribes 
which live without history, that is, without progressive 
change, interesting to the naturalist, but of no account in 
the history of mankind. JN T or is it for us here to specu- 
late how far these tribes, now so low and brutish, may 
be susceptible of organic improvement, which, it cannot 
be denied, has taken place with some races. The ne- 
gro of Virginia is superior, as to the formation of his 
head, to the negro of the more southern states, because 
he descends from earlier-imported generations. The 
negro of the most southern of the United States, again, 



sec. lviii.] Rights of Mail. 239 

has much more expression of intelligence than the new- 
ly-imported negro in the West Indies. So has civilisa- 
tion improved the formation of the head in the Celtic race. 

Man, as to his existence on this globe, may be consi- 
dered in the following points of view : physically and in- 
dividually ; in this respect he forms a link in the great 
and endless chain of distributed matter, and has his 
meaning, as the animal, the plant, the mineral has in 
God's vast creation. He may be considered, individ- 
ually, morally, and intellectually ; in this respect he is 
above all other creatures, and an immortal being. 
Finally, we may consider man socially ; in this respect 
he has his meaning as a member of a society which 
passes from one stage to another, which establishes in- 
stitutions, gradually developing themselves, and which 
by the amount of its civilisation contributes a share to 
the general, gradual and continuous development of the 
favored races — the history of the civilisation of mankind. 

Whatever may be the result of reflection, when we 
consider those lower races of the human species under 
these various points of view, this remains certain : 

When we pronounce the name of man, we pronounce 
the belief of immortality ; 

When we call a being man, we attribute a separate 
moral value of his own to him, and cannot any longer 
use him merely for our benefit, as we use the animal. 
We attribute rights to him. 

How far the primordial rights, ascertained in preced- 
ing passages, may practically expand with each race, no 
human mind can say, but they are the rights, towards 
a greater and fuller acknowledgment of which, each step 
in the progress of civilisation infallibly tends, and, there- 
fore belong to the very nature of man. 



(240) 



CHAPTER VI. 

The State necessarily comprises all. No one can declare himself out 
of it; no one can be considered out of it. — Different Meanings at- 
tached to the word State at different Periods. — Mankind divided into 
many States — Why? — Sovereignty. Definition. — There were never 
individual Sovereigns before the Formation of the State. — Who is 
the Sovereign? — Manifestations of Sovereignty. Public Opinion, 
Generation of Law, Power. — Public Opinion. — Law. What does it 
consist of? — Public Will. — Nature, Common Sense, Custom and 
Usage, Common Law, Charters, Codes and Statute Law, Decisions, 
Precedents, Interpretation, Authentic Interpretation, Digests. — Judge- 
made Law, so called. — Power rests with Society, cannot rest any- 
where else. — Government, what it is. — Various Kinds of Governments 
as to their Origin. Always rest on Opinion. — Importance of distin- 
guishing State, Government, Sovereignty, Supreme Power. — Divine 
Right. — Monarchs called of God. — Frederic's and Joseph's View. — No 
Monarch ever was or can be Sovereign in the true Sense. — Meaning 
of the Word Sovereign if used of the British Monarch. — Declaration 
of Rights. — True Relation of Monarch and People. — Can the King 
really do no Wrong, constitutionally or legally ? He can do so, and 
it has been decided that he can. — British Monarch the Fountain of 
Honor. Its Meaning. — Different Title of Monarchs; some of the 
Land, some of the People. 

LIX. All actions of man, and all the relations in 
which he stands to other men or to things may be dis- 
turbed, and all his actions and relations must be con- 
sentaneous to the fundamental principle, that he is 
directed by his nature to live in society, and to obtain 
in and through society his highest object, namely, that 
of being fully man. Hence it is that the state, which 
has been found to be the society, founded upon the 
relations of right, and which has to protect them in the 



sec. lix.] Meaning of the Term. 241 

highest sense of the term, extends to all members of \ 
that society, and to all their relations in as far as they 
manifest themselves outwardly, that is, by actions. The 
state must maintain right ; it must repress interference 
with right, and must help every one to his right, which 
includes, as has been indicated several times, that it 
must assist me in obtaining that, by and in society, 
which is necessary for me, physically and intellectually, 
and which I cannot obtain individually. No man, there- 
fore, has the right to declare himself out of the state, 
and no circumstance can sever him from the state, so 
long as he is man, that is, lives, because he has always, 
by the mere fact that he is a human being, rights, the 
infringement of which the state must repel. Active 
and passive members, e. g. children, are still members 
of the state, and demand its action. On the one hand, 
therefore, the Jacobites were as much members of the 
state, and England had as much right to make them 
amenable to the laws of the land, as if they had taken 
the oath of allegiance ; on the other, paupers and idiots, 
aliens and travellers are as much within the sphere of 
the political action of society as the richest, wisest, or 
the members of long settled families. 

The word state has had very different meanings, ever 
since it has been used ; that is, people have taken dif- 
ferent views of the subject, at different periods, as of 
every important one, and the idea of the state follows the 
general law of ideas, namely, that they are more clearly 
developed, and that they present themselves with their 
more distinct and essential characteristics only in the 
course of time, being subject likewise to unfavorable 
influences and consequent retrograde movements. I 
shall hereafter speak farther of the view which the 

VOL. I. 31 



242 The State. [book ii. 

Greeks took of the state ; the Romans formed originally 
a conquering city. At a later period, the emperor had 
all the power over very incongruous parts of the empire. 
Yet even then the idea was distinctly recognised that 
the emperor was placed on the throne to do justice ; 
that men were congregated for some mutual benefit. 
Previous quotations prove it. The emperor of Germany 
swore at his coronation to protect the widows and 
orphans, and have justice administered to all. 

"Formerly," says Hallam, note to page 51, vol. i. 
Constit. History of England, "the king had taken an 
oath to preserve the liberties of the realm, and especially 
those granted by Edward the Confessor, &c. before the 
people were asked whether they would consent to have 
him as their king. See the form observed at Richard 
the Second's coronation in Rymer, vii. 158. But at 
Edward's coronation, the archbishop presented the king 
to the people, as rightful and undoubted inheritor by 
the laws of God and man to the royal dignity and 
crown imperial of this realm, &c, and asked if they 
would serve him and assent to his coronation, as by 
their duty of allegiance they were bound to do. All 
this was before the oath. 2 Burnet, Appendix, p. 93. 
Few will pretend that the coronation, or the coronation 
oath, were essential to the legal succession of the crown, 
or the exercise of its prerogatives. But this alteration 
in the form is a curious proof of the solicitude displayed 
by the Tudors, as it was much more by the next family, 
to suppress every recollection that could make their 
sovereignty appear to be of popular origin." Hallam 
gives credit to Lingard for having remarked this import- 
ant change in the coronation ceremony. 

At the late coronation of queen Victoria, the arch- 



sec. lx.] In Feudal Times. 243 

bishop of Canterbury pronounced these words, while 
the queen remained standing and turned towards the 
people on the side at which the recognition was made : 
' Sirs, I here present unto you queen Victoria, the un- 
doubted queen of this realm ; wherefore, all you who 
are come this day to do your homage, are you willing 
to do the same ? ' 

LX. In the worst feudal times the idea of the state 
was probably more obscured than long before or ever 
after. Actual force ruled in many parts of Europe. 
But even then the individual feuds were considered as 
unhappy anomalies. Robbers may do many bold acts, 
and unhappy is the state of things, where they may do 
them with impunity. Duke Warner wore a legend worked 
in silver on his surcoat, ' I am Duke Warner, the chief 
of the Great Company, the enemy of God, of piety and 
mercy.' (Hist. Life of Joanna of Sicily, vol. ii. p. 2). 
Melancholy is the age, or country, indeed, where this 
can even be dared, where this is suffered even among 
the banditti ; but the idea had never been given up that 
rulers became such in order to maintain justice and to 
protect the church. And what else does the latter 
mean than that the rulers, the government, such as it 
was, was for the common benefit. Even in the worst 
and most heartless periods of French politics, when an 
indefinite idea with regard to the state seemed to be 
floating about, sometimes, as is common to this day, 
confounding it with the government, sometimes imagin- 
ing it as something built upon the people, who thus are 
believed to form the substratum of the state, and were 
consequently compared by Richelieu to mules, (1) 
sometimes, as if it were concentrated in the monarch 



244 The State. [book ii. 

who thus had a right to, and was the rightful owner of 
all property, church and lay (2), or as if the government, 
considered in its consecutiveness, from age to age, were 
an instrument in the hands of the royal house or consec- 
utive family, even then the obedience of the people was 
always claimed, either on the ground of general benefit 
that without it everything would dissolve into anarchy, 
or on the ground of divine law, that is, divine order of 
things, and of course the divinity could not be imagined 
as having created millions for the benefit of a few or 
one ; nor was it so considered, however contrary the 
actions of the rulers frequently were. When the same 
Louis XIV, who had said, I am the state, was at the 
point of death, he said, Je m'en vais, mais l'Etat de- 
meurera toujours. (I depart, but the state will endure 
for ever). He acknowledged he was not the state, but, 
at the highest, its representative, for otherwise the state 
must have departed with him. Thus, when the king of 
France died, it was customary to proclaim the death by 
the words, ' The king is dead, long live the king.' And 
what was this 'state' which would endure for ever? 
Did the court form the state, or the nobles, or the 
employes, the navy or army, the judicial courts ? The 
people have always instinctively discerned, sometimes 
in spite of the professed doctrines, between the mon- 
arch with his government, and the country, i. e. the 
state. There was never yet a Frenchman, plebeian 
or courtier, for whom the word la France, though 
politically considered, had not a very different sound 
from that of the word monarque or roy. The state is 
what the ancients fitly called res publico,, and defined 
by being res communis, res populi. 



sec. lxi.] Division of Mankind into States. 245 

(J) In Richelieu's Political Testament addressed to king Louis 
XIII, chap. iv. sect. 5, he says, " The people may be compared to 
mules, which, being accustomed to the load, are more spoiled by a 
long rest than by work ; but as this work ought to be moderate, 
and as the load of these animals ought to be proportionate to their 
strength, it is the same with regard to the subsidies to be paid by 
the people. If they are not moderate, even if they were useful 
to the public, they would be nevertheless unjust." Considering 
those times, when the term politics meant a system of wisdom and 
experience to manage the affairs of the king, and when ' la gloire 
de S. MJ was often used as designating the great and main object 
of the state, precisely as now frequently the success of the party 
is substituted for the 'welfare of the people,' these words of Riche- 
lieu's appear quite moderate. 

(2) See the Testament of Louis XIV. 



LXI. Mankind extend over so vast a space, the vari- 
ous countries have characters so different, the several 
portions of mankind stand in so different degrees of 
civilisation, their wants, physical and intellectual, their 
taste and genius promoted or retarded by circumstances 
and events uncontrollable by them, the objects they 
strive for by joint exertions, their dangers, desires, in- 
terests and views, languages and religions, capacities and 
means, are of such infinite variety — that human society 
does not, and according to the order of things, ought 
not to form one state. There exist many states ; that 
is, mankind are divided, in consequence of countless 
concurring circumstances, into a number of societies, in 
each of which exists the absolute necessity of forming a 
state — a necessity without which man cannot rise higher 
— a necessity which is felt by all at all times, however 
different the view that people take of the state, or 
though the state may not even yet have developed itself 
in their minds as a separate idea, distinct from all other 



246 The State. [book ii. 

societies. Men cannot exist without the state ; men never 
have existed without the state ; for everywhere we find 
rights acknowledged, laws and rules observed, authori- 
ties established. The idea of law itself need not have 
presented itself very distinctly to the mind ; it may yet 
be in a great measure bound up with the personality of 
the authority, whom all obey, who commands and gives 
the rules ; yet even then the state exists in its incipient 
stage, because it is a law — it need not be written — that 
the others obey, that gives him, who is the superior, 
power or authority to prescribe rules, settle differences. 
So have men never lived without the administration of 
justice ; they cannot by possibility. Yet there is a vast 
difference between the first summary procedure of a 
patriarch, and the elaborate, well-poised trial of a highly 
civilised community. As man has never existed without 
some, at least incipient manifestations of the love of the 
beautiful, still there is a great difference between the 
tattooing of the savage or his first uncouth idols, and the 
perfect beauty and simplicity of the Grecian Aphrodite. 
Does this difference justify us in asserting, that the love 
of the beautiful is not natural in man, but learnt, acquir- 
ed, that there is no original aesthetic disposition in him? 
If so, why does taste, rude, correct or perverted, pervade 
all mankind and form one of the main-springs of all in- 
dustry ? Men, be it repeated, are nowhere without the 
state, and this is one of their distinctions from the brute. 
Brutes nowhere acknowledge a superior, a leader. 
If they follow greater force, or if many females follow 
one male, it is the yielding to physical power or the 
operation of physical laws, not the acknowledgment 
of superiority. It is the high distinction of man to ac- 
knowledge authority. 



sec. lxi.] Sovereignty. 247 

Wherever we find men, in whatever stage of social 
development, the barbarous Patagonian, the restless son 
of the desert, or the moving hunter of the prairie, the 
piratical Malay, the forlorn Esquimaux, the slavish Asiatic 
or conscious American, the submissive Russian or the 
manly Briton, where there are men, there are also rules, 
rulers and ruled, ordainers and obeyers, judges and 
judged, those that have power and those that yield obe- 
dience, chieftain and followers, princes and subjects, 
magistrates and citizens — always superiors and inferiors. 
The state is natural to man, is absolutely necessary to 
man. Each state carries within itself the absolute ne- 
cessity of existence ; not that each separate state must 
necessarily exist separately for itself, but that the people 
who constitute the state, must needs live in a state, in a 
jural society. There is an absolute necessity of man's 
living with man in relations of right, of rules which guide 
his actions, of power to enforce these rules if not will- 
ingly obeyed, or of deciding where the rights of various 
individuals clash with each other — an absolute necessity 
of man's living in society and of his being protected 
therein. 

And this absolute necessity, with the power necessa- 
rily flowing from it over all outward relations, we call 
sovereignty. The right, obligation and power, which 
human society or the state has, to do all that is neces- 
sary for the existence of man in society, is the true 
sovereign power. It is the basis of all derived, vested, 
or delegated powers, the source of all other political au- 
thority — itself without any source, imprescriptible in the 
nature of man. It exists by absolute necessity, and 
draws from its own self-sufficient plenitude. Since so- 
ciety, hence the state never ceases, and since with them 



r 



248 The State, [book n. 

their necessity of existence never ceases, so is the sove- 
reign power never exhausted or extinct, but acts in 
all cases, in which the derived or vested powers, the 
powers of trust, are at an end, it being the never-ceas- 
ing fountain and the last resort of all power, the ' sum- 
mum imperium,' the 'summa potestas nulli subjecta.' 
The true definition of sovereignty, therefore, would be, 
that it is, Prima et summa civitatis vis et potestas — vis, 
because of its being the primitive energy of the state ; 
potestas, because of its being the last and supremest, 
chiefest and ever-active power. It has been seen that 
justice in its broadest sense, as that which is just, is the 
foundation of the state, and its vital element, and thus 
Milton is right when he says, ' Justice is the only true 
sovereign and supreme majesty upon earth. 5 (Tenure of 
Kings and Magistrates, vol. ii. p. 1 72 of Milton's Prose 
Works, Boston ed.) This is the true divine right of 
sovereignty. ' Item author justiciar est deus, secundum 
quod justicia est in creatore." (Bracton de Legg. et 
Consuet. Angl. lib. i. cap. 3). 

LXII. To repeat briefly the train of the argument : 
As axiom I stated, Man is made to be man, or, I am a 
man, therefore, I have a right to be a man. Man can- 
not be man without society. Society cannot exist with- 
out jural relations between its members, because no 
member ought to give up, or can give up his individ- 
uality. Society, considered as to its jural relations, or 
jural society, is the state. The necessary existence of 
the state, and that right and power which necessarily or 
naturally flow from it, is sovereignty. Sovereignty de- 
rives its power from no previous or superior one, but is 
the source of all vested power. 






sec. lxii.] Sovereignty. 249 

If a man were to ask in earnest, whence does this 
power flow, he could only be answered by a counter- 
question, such as, whence do you derive the right of 
breathing? He would answer, 'my existence is the 
self-evident proof of my right of existence, and in 
order to exist, breathing is absolutely necessary.' The 
same applies to sovereignty. Absolute necessity gives 
in all cases sovereign power, namely, that primitive 
power which supersedes all other, as it is its source. 
The crew of a vessel are in a state of mutiny ; the 
captain has been killed ; an energetic man among the 
passengers unites the latter and part of the crew with 
himself; he seizes the mutinous sailors; there is no 
possibility of subduing or preventing them in any other 
way from piratical acts. He tries them with the assist- 
ance of his fellow-passengers, and hangs them. He is 
right, and provided he can prove everything as stated 
abbve, he will be justified by any court which decides 
according to strict justice, and this alone. 

The French vessel la Meduse (Medusa) went in 
1816 to the river Gambia, and was wrecked. About 
150 of the crew built a raft and suffered incredi- 
bly. They enacted a law that any one who, unau- 
thorised, should open the wine casks, which were of 
infinite importance to them, should be thrown over- 
board. Some consequently were thrown into the sea, 
having opened a cask in the night. They likewise 
passed a law that thirty of their half dead comrades 
should be consigned to a watery grave, because they 
could not live long and still were consumers of the very 
small stock of provisions, which but barely kept the 
stronger ones from starvation. Without this law the 
remaining ones would have lost their chance of living (1). 

vol. i. 32 



250 The State. [book ii. 

Provided the people who tried and executed the 
murderer, Patrick O'Conner, as related in the Galenian 
of June 23d, 1834 — a paper published at Galena, in 
the north-west angle of the State of Illinois — could 
not by possibility obtain in their then wilderness the 
means of trying this dangerous man, who had for a long 
time committed crimes against them, they were right in 
doing so for themselves (2). It may have been the 
fault of the state not to provide that part of its territory 
with sufficient means of administering justice ; I only 
speak here of the supposed necessity under which the 
people labored, and the consequent right. 

Precisely as necessary as physical existence and its 
protection, is, as has been shown, the social existence 
of man, and consequently its insurance, from which 
follows sovereign power. This is not the place to 
treat of the great danger of resorting to this sovereign 
power, implied in necessity, in single cases, and to 
the enormous abuse to which it may lead, if wrongly 
applied. 

(1) An account of this thrilling transaction may be found in 
the London Saturday Magazine, of April 12, 1834. See also 
Capt. Ross's Voyage in 1829 to 1833, page 430, American edition, 
with regard to the opinion of the English public respecting his sick 
men, and the brave captain's indignation. 

(2) This very peculiar affair was reprinted, among other papers, 
in the National Gazette (Philadelphia) of July 16, 1834, which 
will be more accessible to many readers than the Galena paper. 

LXIII. It appears then that sovereignty is a power 
and energy naturally and necessarily inherent in society; 
it only exists with society, it cannot pass from it. It is 
the vital principle of the state, and any one can no more 






sec. lxiii.] Society alone is Sovereign. 251 

live for another than one or more can have sovereignty 
for another. The assertion that society, or the people, 
divest themselves of sovereignty and delegate it to some 
one else, is as contradictory in itself, and can be as little 
imagined, as if we should force our minds to suppose 
the trees of a forest delegating one tree to be green 
for them, or to sprout in spring for them — nay more 
difficult, because sovereignty and state are ideas essen- 
tially united, one being only the attribute of the other, 
as omniscience is of God. Nor is it any more cor- 
rect to imagine a human individual at some period 
or other, a sovereign for himself. Mably said, ' Man 
appears to me only to be a dethroned king.' (Des 
Droits et des Devoirs du Citoyen, p. 12). Strange 
kings, (that is, holders of supreme power) without 
kingdoms, (that is, power over nothing). Man, ima- 
gined without the state is merely an individual man; 
but sovereignty is the inherent attribute of society. 
Had people always traced out the true nature of the 
state, and acknowledged that this alone is the state of 
nature for men, they would not have fallen on the one 
hand into the grave error of imagining each man ' be- 
fore the state was formed ' as stalking about with an 
imperial crown on his head, and a sceptre for his walk- 
ing stick ; on the other, that men, forming a joint stock 
sovereignty company, could delegate this sovereignty 
to any one whomsoever. Of this more hereafter. 

Society never can delegate or pledge away sove- 
reignty, and, of course, never has done so. It is clear 
from what has been stated before, and it will be shown 
by historical evidence in the sequel of the work. 

He in whom rests sovereignty is called the sovereign. 
Who is it? Who else can it be but society ? Not, I 



252 The State. [book ii. 

repeat it, by a union of millions of little sovereignties ; 
nor is each member of the state possessed of a frag- 
ment of sovereignty. Sovereignty has nothing whatso- 
ever to do with the individual. Notions which are rad- 
ically wrong never show their untenableness in so 
glaring a light as when reduced to plain reality. There 
are about fourteen millions of people in the United 
States, of whom say three millions are grown white 
male citizens. If the people are the sovereign by 
a union — a conglomeration of previously detached par- 
cels of sovereignty, each member holds a share in the 
sovereignty. Now let me for a moment withdraw my 
3o^ part of sovereignty, which would be my due for 
myself and family, and make use of it ; for instance, let 
me make a one three millionth part of w^ar against a for- 
eign power, giving up on the other hand all protection 
I might otherwise claim of the United States. I de- 
clare a three millionth part of war against Great Britain. 
I will not kill, I will only do, what might be fairly con- 
sidered a three millionth part of war. I take forcibly 
the purse of an Englishman ; they catch me ; but in 
spite of my open declaration of war, they will not treat 
me with a three millionth part of that consideration with 
which even a common soldier, if prisoner of war, is 
treated. They try and transport or hang me, as the 
case may be ; nor is this the worst. Not one pang of 
sympathy, not one voice in vindication of my rights at 
home ! Not one speaker on the floor of congress, who 
shows that Great Britain, by disregarding my fraction 
of sovereignty, has seriously endangered his ! 

LXIV. Blackstone acknowledges the sovereignty of 
society, not indeed in so many words, but the relations 



sec. lxiv.] Society alone is Sovereign. 253 

in which the laws and history of Great Britain stand to 
each other forced him to state it nevertheless. The 
reason why he did not distinctly acknowledge it as a 
principle, was because he would not go beyond the 
positive law, speaking indeed of 'fertile imaginations' 
being requisite to furnish the cases of such a violation 
of the constitution by the king as would amount to 
abdication. But it does not require a ' fertile imagina- 
tion ' to think over what has actually happened in history 
so many times. Still he cannot help going at times to 
the very limits and borders of positive law. Thus he 
says, "For, as to such public oppressions as tend to 
dissolve the constitution, and subvert the fundamentals 
of government, they are cases which the law will not, 
out of decency, suppose." (Vol. I, 244). Constitu- 
tional law has nothing to do with decency but with 
right, and right alone. The constitution of England 
does not contemplate these cases, because positive law 
must end somewhere, and though the constitution were 
to adopt the rocoss of Poland, which was a 'lawful 
form of insurrection' in the former elective monarchy 
of that country, it would again remain to be decided 
whether there is or is not lawful reason for the rocoss. 
The passage in which Blackstone acknowledges the 
sovereignty of society is this (vol. I, 245) : 

"Indeed, it is found by experience, that whenever 
the unconstitutional oppressions, even of the sovereign 
power" meaning the royal power, "advance with gigan- 
tic strides and threaten desolation to a state, mankind 
will not be reasoned out of the feelings of humanity ; 
nor will sacrifice their liberty by a scrupulous adherence 
to those political maxims, which were originally estab- 
lished to preserve it. And therefore, though the posi- 



254 The State. [book ii. 

tive laws are silent, experience will furnish us with a 
very remarkable case, wherein nature and reason pre- 
vailed. When King James the second invaded the 
fundamental constitution of the realm, the convention 
declared an abdication, whereby the throne was ren- 
dered vacant, which induced a new settlement of the 
crown. And so far as this precedent leads, and no 
farther, we may now be allowed to lay down the law 
of redress against public oppression. If, therefore, any 
future prince should endeavor to subvert the constitu- 
tion by breaking the original contract between king and 
people, should violate the fundamental laws, and should 
withdraw himself out of the kingdom; we are now 
authorised to declare that this conjunction of circum- 
stances would amount to an abdication, and the throne 
would be thereby vacant. But it is not for us to say 
that any one, or two, of these ingredients would amount 
to such a situation , for there our precedent would fail 
us. In these, therefore, or other circumstances, which 
a fertile imagination may furnish, since both law and 
history are silent, it becomes us to be silent too ; leaving 
to future generations, whenever necessity and the safety 
of the whole shall require it, the exertion of those inhe- 
rent (though latent) powers of society, which no climate, 
no time, no constitution, no contract, can ever destroy 
or diminish." So far Blackstone. I have only to re- 
mark, that the * nature and reason ' which prevailed in 
the case of James II, is all I claim for the foundation 
of the state with its sovereignty, that the end of the 
passage quoted is the amplest acknowledgment of the 
sovereign power of society, and that I prefer to call 
sovereign power that ' inherent power ' which is even 
above the power, called by Blackstone and generally, 



i 



sec. lxv.] Public Opinion. 255 

sovereign power, and shall designate the latter by a 
different name. From the next section it will appear, 
however, that this ' inherent power ' is ever active, and 
not so entirely 'latent,' and that without its action soci- 
ety could not exist for a moment. 

May I be permitted to conclude the present section 
with an extract from Hallam, Const. Hist, page 392 and 
the following, strongly supporting the view just given : 

" In point of fact, neither James I nor any of his pos- 
terity were legitimate sovereigns, according to the sense 
which that word ought properly to bear. The house 
of Stuart no more came in by a lawful title than the 
house of Brunswick ; by such a title, I mean, as the 
constitution and established laws of this kingdom had 
recognised. No private man could have recovered an 
acre of land without proving a better right than they 
could make out to the crown of England. What then 
had James to rest upon ? What renders it absurd to 
call him and his children usurpers ? He had that which 
the flatterers of his family most affected to disdain, the 
will of the people ; not certainly expressed in regular 
suffrage or declared election, but unanimously and vo- 
luntarily ratifying that which in itself could surely give 
no right, the determination of the late queen's council 
to proclaim his accession to the throne." 

LXV. The sovereignty of society manifests itself : 

1. By public opinion. 

2. By the generation of the law. 

3. By power. 

1- Public opinion. The term is taken here in its 
most comprehensive sense, not only meaning the opin- 



256 The State. [book ii. 

ion of the community in as far as it has been made 
public, especially with regard to some specific measures, 
pending or adopted, but as the opinion of the public, 
of civil society, as we are apt to term public, anything 
connected with the state, for instance, public life, public 
character. I understand by public opinion the sense 
and sentiment of the community, necessarily irresisti- 
ble, showing its sovereign power everywhere. It is 
this public opinion which gives sense to the letter, and 
life to the law : without it the written law is a mere 
husk. It is the aggregate opinion of the members of 
the state, as it has been formed by practical life ; it is the 
common sense of the community, including public know- 
ledge, and necessarily influenced by the taste and genius 
of the community. How is it formed ? It is formed as 
the opinion of any society is formed, which must always 
consist of leaders, superior men, men of talents, or well- 
informed men, who had an opportunity to see or inform 
themselves, and less gifted men, or less informed per- 
sons, the acquiescing or trusting ones. Not that the 
leaders prescribe with absolute power ; they only either 
pronounce clearly, what has been indistinctly felt by 
many, or they start a new idea, which, in being received 
by the acquiescing ones, has to accommodate and 
modify itself to the existing circumstances. The lead- 
ers themselves are under the strongest influence of 
that sense and sentiment of the community, for from 
early childhood they live in the same relations with the 
others. Public opinion is not only an opinion pro- 
nounced upon some subject, but it is likewise that 
which daily and hourly interprets laws, carries them 
along or stops their operation, which makes it possible 
to have any written laws, and without which any, the 



sec. lxv.] Public Opinion. 257 

wisest law might be made to mean nonsense. It is 
that which makes it possible to prescribe and observe 
forms, without their becoming a daily hindrance of the 
most necessary procedures and actions ; it is that 
mighty power which abrogates the most positive laws, 
and gives vast extent to the apparently narrow limits 
of others ; according to which a monarch ever so ab- 
solute in theory, cannot do a thousand things, and 
according to which a limited magistrate may dare a 
thousand things ; which renders innocent what was 
most obnoxious, and makes, at times, useless the best 
intended measures, protecting sometimes even crime. 

I do not indeed say that this sense and sentiment of 
the community, is always right. Who will deny that 
it was the public opinion of the seventeenth century, 
that there were witches, that they ought to be killed — 
a power which forced judges against their judgment 
to allow the unhappy beings to be prosecuted, however 
distressing the whole procedure might be to them. 
See an instance in the Life of the lord keeper Guil- 
ford, London, 1819, vol. I, page 250. But generally 
speaking public opinion is less apt to be wrong on 
broad important questions than that of individuals, 
because it is nothing else than the result of individual 
opinions modified by one another. ' I know one,' said 
Talleyrand, according to de Pradt's Guarantees to be 
asked of Spain, chap. 5, ' who is wiser than Voltaire 
and has more understanding than Napoleon himself and 
all ministers who ever were, are or will be, and this 
one is public opinion.' In the second part of this work, 
I shall inquire into the question when a citizen is bound 
boldly to disregard public opinion, and when to submit 

vol. i. 33 



258 The State. [book ij. 

to it his individual judgment; here I have to treat of it 
only as the attribute of sovereignty. 

Public opinion had abolished torture long ago in Den- 
mark, yet but lately it was abolished by written law. 
The code of Charles V, still the penal law of several 
parts of Germany, prescribes most severe and frequently 
cruel punishments, entirely at variance with the spirit 
of the age, which is but a different name for public 
opinion applied to a larger society and considered as 
to a given period. The consequence has been that 
all manuals of German penal law give the respective 
punishments fixed by the code of Charles, and those 
which are awarded according to ' practice.' Yet this 
' practice ' has never been legislatively enacted. No 
one according to law shall be present at the debates of 
the British parliament, except members. This is the 
positive law. There are galleries built for the public, 
and convenient places for reporters ; this is the public 
opinion. Let any one, let the ministers, let the mon- 
arch, dare to insist upon that law. The British con- 
stitution, that is the law, says, that the king may veto 
any bill which has passed through both houses ; British 
public opinion prevents the monarch from making di- 
rect use of the privilege, at least he has not withheld 
his approval for now nearly two centuries. A law 
banishes all members of the Bonaparte family from 
France. Lately one of them visited the king of the 
French at the Tuilleries ; all the papers mentioned it. 
Why are so many things absolutely impossible, in spite 
of all the law that might be cited in favor of it ? Be- 
cause public opinion decides thus, that is, in many 
cases, common sense, which must always decide on 
the application of rules, whether they be furnished 



sec. lxv.] Public Opinion. 259 

by grammar, architecture, or politics. (See Herme- 
neutics). 

When queen Victoria went, on December 23, 1837, 
to the lords to give assent to various bills, the clerk called 
out, after the title of one had been read, Le roi le veut 
(the king wills it) instead of La reine le veut (the queen 
&c.) The clerk, according to the papers did not cor- 
rect himself. Now suppose a lawyer were to build an 
argument upon this bill's never having become a law, 
because it had never received the royal assent, there 
being at the time no king in England. He might bring 
most powerful arguments in favor of the necessity of ob- 
serving strict forms, the more urgent the more important 
the respective spheres of action are; he might quote 
innumerable precedents of mere violated forms having 
defeated otherwise legal measures; he might bring 
powerful analogy within a hair's breadth of his case, 
and yet would he be able to move his case one step ? 
Every one would laugh, or if not, so much the worse 
for the state of public opinion. 

There is to this day a law on the statute-book of 
South Carolina, unrepealed by the authority which made 
it, to the effect that every male of age shall go to church 
well armed. The dangerous state of the country at 
the time required it against the Indians. Suppose a 
conscientious citizen were to appear in church with a 
brace of pistols, cutlass and rifle. The whole commu- 
nity with one voice would set him down as deranged, 
he would lose all public confidence, and would most 
materially injure his family, besides that he would dis- 
turb public worship. Suppose, on the other hand, any 
public officer were to take it into his head to fine a citi- 
zen for not having appeared well armed in church, ac- 



260 The State. [book ii. 

cording to the old law. Would he not be scouted by 
judge, jury, people, by every one ? And the law does 
stand repealed by the irresistible sense and sentiment of 
the community. This does by no means preclude cases 
of strict adherence to an obsolete law, for the very 
purpose of drawing public attention to it, and effecting 
a final implicit expression of repeal by public authority. 
For laws, though obsolete, and universally acknowledg- 
ed to be so, may still be of a character which renders 
them either dangerous or inconvenient in special cases. 
Or they may, in their character, be iniquitous, and the 
public morality may demand their erasure merely on 
the score of public propriety, decorum or morality. 

Public opinion, in this wide sense, is the continued 
sovereign action of society, and also the link between 
society at large and the state, when a given society is 
either narrower or wider than a given state. 

We are apt to believe that from the want of publicity, 
absolute states are not ruled by public opinion. It is 
true, that public opinion does not act upon so many sub- 
jects, but it is in Asia as powerful as in Europe, on those 
subjects on which it acts at all. Let an eastern mon- 
arch attempt anything against the opinion of his people 
at large, for instance, attempt public irreverence against 
the prophet. The king of Denmark was, by the funda- 
mental law of 1660, absolute in every way. The fancy 
of a man brought up in a constitutional country, cannot 
invent a law which provides, in so detailed a manner, for 
the monarch's being above all law, and that nothing what- 
soever shall ever be binding for him, or limit his power, 
not even he himself. So far the theory or the letter ; 
but was the Danish king really at liberty to do what he 
liked ? Suppose he had attempted so mean a thing as 



sec. lxv.] Public Opinion, 261 

the prohibition of the Danish national dish, called grit, 
would his absolute power have supported him ? Theo- 
retically, the king of Prussia was absolute when he or- 
dered his minister, by cabinet order of July 18, 1798, to 
lay certain proposals of a union between Lutherans and 
Calvinists, before the public, and report to him, \ when 
public opinion has decided upon their expediency,' &c. 
March 25, 1813, the emperor of Russia and king of 
Prussia issued a proclamation, which contains this pas- 
sage : ' Their majesties expect a faithful and complete 
cooperation of every German prince, and they are pleased 
to suppose, that none will be found among them ready 
to be and remain a traitor to the cause of Germany, so 
that thereby he should deserve to be annihilated by the 
power of public opinion and the force of arms, which 
have been taken up' (against Napoleon). 

At times, we see a man apparently act directly against 
public opinion. Richelieu saw the enormous extent to 
which duels were then carried in broad daylight. He 
dared to execute according to law two noblemen (Bou- 
teville and Chappelles) for this offence. The whole so- 
ciety seemed vehemently opposed to him, but would he 
have been able to carry his point, had it not, after all, in a 
still larger society been felt that he was right ? — It is one 
of the greatest traits of a noble citizen to be able to see 
one layer of public opinion through another, or, if he 
does not see it, to trust in God that it must be there, 
and act accordingly. 

Napoleon, a good authority as to the practical opera- 
tion of public opinion, said, ' Public opinion is an invisi- 
ble, mysterious power, which nothing can resist ; no- 
thing is more movable, more vague, more powerful; 
and capricious as it is, it is nevertheless true, reasonable, 



262 The State. [book ii. 

just, far more frequently than one is apt to think.' (Las 
Cases Memorial, vol. i. p. 452, edit, of 1824). 

LXVI. 2. Law, from the Anglo-Saxon Lagu, that 
which is laid down, settled (1), is a rule of action with 
binding force, or law is a (general and) binding rule 
respecting effects to be produced by certain agents. 
These agents may be physical or moral. Laws, which 
refer to the former, are called laws of nature, inasmuch 
as we imagine the principles of the physical changes 
prescribed by the authority of the maker. Laws re- 
specting moral agents determine human will as a free 
power of rational beings. They shall be obeyed, but 
may be disobeyed. If these laws relate to the outward 
actions only, they are jural laws (leges juris), if they 
relate to the internal assent, depending upon man's mo- 
tives, they are laws of virtue. If we call the first, princi- 
ples ; the latter, commandments ; we may call jural laws, 
simply laws. We have to do here, with these alone, and 
I shall designate them by the simple term, law ; using, 
however, for the present, the word in its most compre- 
hensive sense, that is, for all rules which direct, with 
binding power, no matter whence it arises, our jural 
actions, or actions relating to right. In as far as laws 
are rules acknowledged (sanctioned, authorised) by the 
state, that is, publicly by society, no matter in what 
manner, whether by distinct legislative action or by 
gradual recognition, for instance, by repeated decisions 
of some proper authority, law is public will. In many 
cases the line, where public opinion passes over into 
public will, is distinct ; in some cases public opinion is 
so strong, decided and binding, respecting some specific 
subject, that the line cannot be so distinctly drawn. 



sec. lxvi.] Law. 263 

At other times, some law distinctly says, or it has been 
settled by custom, that well-settled usage, which is but 
a species of public opinion, shall be law. That public 
opinion, taken in the sense in which it has been used 
in the previous section, and law, must approach to one 
another in many cases very closely, is clear from their 
very nature. The process of public opinion passing 
into public will, is in many cases imperceptible. The 
question now is, What are these rules which determine 
man's jural actions, and serve to others as rules in judg- 
ing of them ? They are the following : 

Nature and necessity. 

Common sense. 

Custom and usage (the unwritten expression of 
public will), either in any branch of practical life, 
or in judicial matters themselves, and, again, either 
existing as yet not specifically acknowledged, by 
authority, or distinctly acknowledged, which be- 
comes the 

Common Law of the land. 

Fundamental laws, charters, organic laws ; they 
generally rest largely upon custom ; hence the oath 
of monarchs to administer the government accord- 
ing to law and custom. See Hermeneutics. 

Written constitutions. 

Codes of other countries, which have force by 
the respect paid them, as the civil code of ancient 
Rome in many countries in cases on which the 
domestic law is silent. 

Statute law. 

Any other enacted law. 

Decisions. 



264 The State. [book ii. 

Precedents of any other sort, as repeated mea- 
sures. 

Overruling decisions. 
Interpretation. 
Authentic interpretation. 
Codes, digests. 

(1) Swedish laga, in ancient Low-Saxon lage, connected with 
German legen, the English to lay, lay down, which goes through 
all Teutonic and many other idioms. See Adelung ad verb. Le- 
gen. The German for law is Gesez, that which has been set, set- 
tled, set down. The Dutch is Wet, from weeten to know, of the 
same root with the English to wit, that which is known, acknow- 
ledged. See likewise Jus in Ramshorn's Latin Synonimics, vol. 
II, p. 125. 

LXVII. It is easy to see from this list what classes 
form the great bulk of laws, of which again infinitely 
the largest part emanate from society and are enact- 
ed by society, inasmuch as the wants, sense and sen- 
timent of society demand it, and nothing can resist 
it. Lord Somers, the distinguished lord high chan- 
cellor of England under William III, declared that he 
knew of no good law, proposed and passed at his time, 
to which public papers had not directed attention. 

Perhaps it is necessary to say a w r ord respecting one 
large class, namely, codes and written constitutions. 
They certainly seem to be distinctly enacted, given to, 
not made by the people. A monarch, for instance as 
Frederic the Great, promulgates such a code. First, did 
he make it, or was it digested by a variety of committees, 
composed of men, who brought with them nothing more 
nor less than what they had acquired through life by the 
study of the laws of the land, and again from teachers, 
by practice, and under the hourly influence of society 



sec. lxvii.] Law. 265 

itself. They could not by possibility bring with them 
anything else. How shall a man act to remove himself 
extra societatem? Some laws were enacted in the 
code, which could not maintain themselves, and they 
were changed. Secondly, what is codification? Not 
the spinning of a thread from out the solitary brain of 
an individual. It is the collection, condensation, sys- 
tematising and reconciling of what is scattered or con- 
tradictory ; all that in a code which is not conformable 
to the spirit of society must fall to the ground. Men 
like Solon and Lycurgus did not make constitutions 
like Condorcet, but rather collected them. This does 
not contradict the vast power of a great mind exercised 
over his community. That the latter acquiesce in or 
support what he proposes or does, belongs likewise to 
the sense and sentiment of the community ; and they will 
not, cannot acquiesce except where that great mind 
acts out, completes, develops, elevates and raises, but 
not where he would establish something absolutely 
foreign and heterogeneous. Even for engrafting a 
nobler branch we want some kindred tree. There 
is hardly such a thing as judge-made law, but only 
judge-spoken law. The doctrine pronounced to-day 
from a bench may, indeed, not be found in any law book ; 
but the judge has ascertained and declared the sense of 
the community, as already evinced in its usages and 
habits of business. If he has not expressed it cor- 
rectly, society will show its sovereign power; his 
decision would be reversed to-morrow or corrected by 
a statute. 

In fact, a doubtful decision is not unfrequently fol- 
lowed by a statute, either affirming or overruling it, as 
the judge may have succeeded or failed in expressing 

vol. i. 34 



266 The State. [book ii. 

the public opinion. For example, the British public, in 
queen Anne's time were in favor of permitting the 
indorsee of a promissory note to sue in his own name. 
The judges ruled that it was contrary to the doctrines 
of the common law. Whereupon the public will to the 
contrary was declared in the statute of Anne. In 
former times a heathen could not be admitted as a 
competent witness, because he could not appeal to the 
god of the christians. It was law, because a general 
and binding rule. Now this view is exploded; his 
conscience is appealed to through the solemnities of his 
own religion. And this is law, because a general and 
binding rule. Who enacted it? Society by its power 
sovereign to all others. If the judge is not the true 
exponent of public opinion, be it that he misrepresents 
it, or that he truly administers the law, which law, how- 
ever, is against public opinion, the latter will prevail, as 
has been said, by way of a new statute. A very curious 
case of this sort is within the memory of all of us. In 
England, in 1818, the trial by wager of battle was claimed 
by the appellee who was proceeded against by a writ of 
appeal, after having been acquitted of murder upon an 
indictment. The final judgment of the court was not 
given, as the appellant declined exposing his life in 
the contest, and prayed no further judgment of the 
court, and the appellee was discharged. (Thornton v. 
Ashford, 1 Barn. & Aid. 405. 3 Chitty's Blackstone, 
337, n.) This appeal, which was held by the court to 
be warranted by the existing law, gave occasion for the 
statute of 59 George III, c. 46, passed 23d June, 1819, 
and which completely abolishes this mode of trial by 
single combat. 

It is a very great mistake to consider the gradual 



> 



sec. lxvii.] Law. 267 

changes of the law and its deviations of to-day from 
what it was a century ago, without the public action of 
the legislative authority, as abuses crept in. It is society 
which demands these changes, and effects them ; it is 
these changes, according to the changes of things, in 
every country more important than the public enact- 
ments, which are partly but the consequence of the 
effected changes, partly receive value and life only by 
the change of the sense of the community, that make it 
possible for society to last. Or ought the German jural 
society for the love of written law, have continued all 
the revolting cruelties of the penal code of Charles V, 
despite of the essential change of the whole nation ? 

We have not to inquire here whether a monarch theo- 
retically stands above the law or whether princips legibus 
solutus est; we shall return to this point. Here we 
have only to inquire, does any monarch, ever so ab- 
solute in theory, feel himself in any degree free from the 
vast bulk of the laws of that society over which he rules ? 
Where is the question more earnestly discussed, day 
after day, what may be done, and what cannot, than in 
the palace of the absolute monarch ? How many thou- 
sand irksome things must not a monarch submit to for 
no other reason than because it is the opinion of the 
society of which he forms a part. Why is, as Eunomus 
said, ' the little finger of the law heavier than the loins 
of the prerogative?' (1) What gives in all free coun- 
tries such mighty meaning to the word law, and the 
more so, the truer a country advances on the path of 
civil and political development ? It was not without a 
deep meaning that, with reference to the late interesting 
case of Stockdale v. Hansard, the printer to the com- 
mons, some British papers (June, 1837), headed the 



268 The State. [book ii. 

article, in which they gave lord Denman's decision, 
which is against the printers for having published under 
the direction of the house, certain documents, contain- 
ing slander, 'The Law versus the House of Commons.' 
See Am. Jur., No. 38, July, 1838. The whole case 
belongs to the series of cases, which are of historical im- 
portance, because representing and embodying a great 
principle, gradually developed by the struggles of many 
centuries. 

It may indeed be convenient respecting some single 
measures to claim the absolute power of a monarch, 
but who will be bold enough to say that a monarch is 
not more subject, owing to the greater publicity and 
importance of his actions, to the fundamental laws and 
framework of society, than others 1 The words of Coke, 
in the memorable debate, May 12, on the right of the 
king to imprison a subject, previous to the passage of the 
petition of right, that '■ Magna charta is such a fellow 
that he will have no sovereign,' Rushworth, vol. i. p. 
562-579, contains a great truth and expresses what has 
been stated. The law comes from society and therefore 
is powerful over every one. That which strikes the 
senses most is generally considered the most important, 
and hence the delusion, that he who proclaims the law 
or completes it by affixing his approbation, is considered 
as the most important authority, in generating the law. 
Yet his approval is powerfully influenced by society 
again, and how very small is that number of laws or 
bills over which the supreme power exercises a more ab- 
solute power, compared to the immense bulk of all those 
laws which are generated by society, and form in every 
state the groundwork for the regulation of all laws. 
Does not all law of a nation rest on usage 1 Must it not ? 



sec. lxviil] Power. 269 

The same remark applies to revolutions. There are 
few revolutions indeed which enter so deeply as the first 
French did. Because the chief of the state changes, or his 
dynasty, we are apt to believe that a total change of 
things has taken place. Yet that which remains is incal- 
culably vaster than that which is changed; that is, society 
with its laws remains master. The English revolution 
was not without essential changes, but if we consider 
how much remained of all laws which regulate the daily 
and therefore most important intercourse between man 
and man, we shall see at once that the changes are 
but a minimum. 

(1) Wynne, who wrote about the middle of the last century. 

LXVIIL 3. Power. — Where can possibly power be 
except with society ? The question here is not even 
whether it is right that it is so, whether it ought to 
be so, but how else by the mere idea which the word 
power designates, sovereign power, power above all 
other power, can be imagined, except with society. 
Monarchs, a part of society, have of themselves, but 
arms and feet like other men ; and physical power, 
such as armies and navies, still more that power which 
they exercise by moral agents, must of course be lent 
them, that is, society forms the power, and may use 
it for one or the other purpose. Whatever opposes 
the power of society, must yield, whatever society 
insists upon is carried, 'by parliament, through par- 
liament, or over parliament,' as Mr. Macaulay in the 
memorable debates of 1832, said of the reform bill. Nor 
does society ever cease to consider itself as the object 
of itself — which is, what I called the self-sufficient pleni- 



270 The State. [book ii. 

tude of sovereignty — and all its parts or separate func- 
tions, however elementary the character of their authority 
may be declared by the fundamental law, may vanish 
and yet not take anything from the sovereignty of society, 
which is natural, inherent, unavoidable and imprescripti- 
ble, not made, granted, declared or arrogated. 

When the king of England was declared to have abdi- 
cated, which is nothing but an expression of constitu- 
tional terminology, or a fiction, in order not to use the 
harsher, or to avoid debates on the plainer term of de- 
thronement, the lords and commons did not believe 
British society had thereby lost any particle of its sove- 
reignty, but they began the preamble of the declaration 
of right with the words, ' Whereas the lords spiritual 
and temporal, and commons assembled at Westminster, 
lawfully, fully and freely representing all the estates of 
the people of this realm,' &c. Now it is quite impos- 
sible that the lords and commons can represent the 
king according to the constitution ; but they can ac- 
cording to that which is above even the fundamental 
law — the sovereignty of society. So, whenever the 
commons are at variance with the lords, on a point on 
which the former have distinctly formed their opinion, 
and speak in the name of the country, the latter must 
necessarily give way, simply because the country or 
society have the power. The lords are a wise institu- 
tion, under the law, but society is that which prescribes 
the law. Subjoined the reader will find a statement 
which is as true as it is interesting, coming as it does 
from a minister of the British crown himself (1). Take 
on the other hand the case of an absolute monarch 
who becomes wholly unable to rule, by derange- 
ment, for instance. The heir presumptive declares 



sec. lxviii.] Power. 271 

himself regent, or monarch, and he is acknowledged as 
such. Any one who opposes his authority is treated 
as guilty of treason. On what ground ? Because the 
heir declared himself such? His declaration cannot 
be the foundation of his right, because when he made 
the declaration he was not yet monarch, and therefore 
had no right to do so. Because the heir has the power 
to do so ? that would be founding his whole right in 
force alone — it would be revolution declared perma- 
nent. Because the monarch is unable to rule ? But 
who says so ? The heir ? There is no law which 
gives him the right of doing so, it would be a power 
above the supreme power of the monarch. His right 
can only be founded in the fact that he is supported 
by society, whom common sense teaches that a de- 
ranged monarch ought not to rule, and whose opinion, 
therefore, either shown publicly and directly or by 
acquiescence, gives him the right. He draws it from 
the sovereignty of society, which in the nature of 
things overrules everything else, and has done so as 
long as history remembers facts. 

(1) If the papers of the time have reported correctly, lord John 
Russell, one of the ministers of queen Victoria, said to the elec- 
tors of Stroud, soon after his election, in the month of September, 
1837 : " At the revolution in 1688, the decision of the house of 
lords was, that James the Second should continue upon the 
throne, and that certain persons should be chosen to exercise the 
regal power in his name. The house of commons, on the con- 
trary, declared the throne vacant. Therefore had the house of 
lords persevered in their decision a civil war must have been the 
result. But the lords knowing their duty to the country, finding 
the house of commons determined, gave way, and William the 
Third was placed upon the throne. From that day to this, when- 
ever the house of lords has fitly understood its duty, it has con- 



272 The State. [book ii. 

trolled what was hasty in the commons — has amended what was 
imperfect — discussed and matured what was not sufficiently consi- 
dered; but, whenever the house of commons, speaking in the 
name of the country, have formally declared their opinion upon a 
certain topic, the house of lords has not made itself a resisting 
body to that opinion. On two occasions it did so, but only for a 
very short time. In the reign of queen Anne the policy pursued 
by the ministry with respect to foreign affairs was contradicted by 
the house of lords ; but Anne immediately redressed the evil, 
and by the exercise of her prerogative quickly compelled them to 
agree with the house of commons. On the second occasion a 
measure, supported by a vast majority of the people in every part 
of the country, was rejected, as essentially mutilated by the house 
of lords ; but lord Grey immediately took forcible measures to 
remedy the evil, and although his proposition was not immediately 
accepted, the lords shortly afterwards gave up and retired from 
the proposition they had previously made. This is the real duty 
of the house of lords, according to the constitution of the coun- 
try, and I trust that in the end they will become fully aware of it. 
At the same time it must be acknowledged that, among the various 
alterations — among the various corruptions which were introduced 
into our constitution by tory ministers, who reigned supreme for 
upwards of fifty years, must be numbered that of pouring into the 
house of lords such a flood of persons of their own political 
opinions as to render that assembly the representatives of a partic- 
ular party, rather than a sound constitutional body. I believe I 
am hardly exaggerating when I say that, in the course of fifty 
years, in one way or another, sometimes by election, sometimes 
by nomination, sometimes by partiality in the creation of peers, 
not less than two hundred persons have been added to the house 
of lords. Of course the introduction of so large a mass of indi- 
viduals, all belonging to one party, has in some respects changed 
the character of the house. But whatever the amount of that 
change may have been, it has not entirely altered the sense which 
has always been entertained in the house of lords, that when 
the commons pronounce a decided opinion upon a great question, 
the opinion of the lords ought immediately to follow." So far 
lord Russell. 

" Whatever may have been the right of the nobility and clergy 
to attend in cortes, their sanction was not deemed essential to the 



sec. lxix.] Government. 273 

validity of legislative acts.' Prescott's History of Ferdinand and 
Isabella, 2d ed. Boston, 1835, page xlix, Introduction. 

LXIX. Government is that institution, or contrivance, 
through which the state, that is, jural society acts in 
all cases in which it does not act by direct operation 
of its sovereignty as mentioned above ; or, in other 
words, government is the aggregate of authorities with 
all that is directly controlled by them. It derives its 
power from the sovereign power of the state, that is, 
I repeat it, from the necessity of the existence of 
society. Governments have been frequently changed, 
dynasties which wielded the supreme (not sovereign) 
power, have been supplanted by others, or by repub- 
lican governments. Now, has the displaced govern- 
ment ever taken with it the sovereign power, that is, 
has the nation, or state, left behind, become incapable 
of providing in every way for itself from its own self- 
sufficient or sovereign power ? If the sovereign power 
rests in some one or something else than the state, then 
we have in the latter case two sovereign powers, which 
is absurd. 

How many governments has the world seen within 
the last fifty years in France, yet has France, the 
French state, that is, the jural society, composed of all 
the French, ever ceased on that account ? Was France 
in England, when Louis XVIII resided there, or Eng- 
land in Holland when Charles II resided in the United 
Provinces ? The following words of Erasmus, who 
surely was no revolutionist, apply to governments in 
general, and we must remind the reader here again of 
what was alluded to before, that to the unobserving, the 
whole government seems to be changed when the dy- 

vol. i. 35 



1 1 



274 The State. [book ii. 

nasty only is changed, or the whole state seems to be 
changed when government only, perhaps nothing more 
than the executive with a few institutions, have been 
altered. Erasmus says (Instit. Princ. Christiani, vol. iv. 
p. 566, F, Ley den ed. 1703), 'Si torques, si sceptrum, 
si purpura, si satellitium regem faciunt quid tandem 
vetat pro regibus haberi tragcediarum histriones, qui 
iisdem ornati prodeunt scenam ? ' 

LXX. Governments are either established by a 
distinct conscious action of society (see farther below on 
Majority and Minority), and pronounce the right to 
change it whenever that society deems proper, as is the 
case in the United States. It must not, however, be 
forgotten, that even in this case the state is not formed 
by a voluntary joining of previously entirely independ- 
ent elements. Who settles first that such or such a 
convention shall be held, or that its decrees shall be 
binding? The state, that is, the society, exists already 
with millions of jural relations and laws ; and the very 
government which is newly established springs from and 
rests upon the previously existing relations of right. 
The radical error, by which government and state are 
confounded, has led to many very serious misconcep- 
tions, of which the chief is that which relates to the 
origin of the state, and to consequent obligations of its 
members. Men have been obliged to resort to a variety 
of fictions. Thus Rutherforth, w T ho merely copies his 
predecessors, says (Instit. of Nat. Law, book ii. chap, i.) 
6 A society is a number of men united together by mu- 
tual consent, in order to deliberate, determine and act 
jointly for some common purpose.' Thus designating 
only what we have termed an association, which, as has 



sec. lxx.] Origin of Governments. 275 

been seen, does not apply to the state, for when was 
this mutual consent pronounced ? Is Russia not a state? 
Yet there is indeed no deliberation. Much as we may 
disapprove of many acts of the Russian government, no 
one can deny her to be a state. Rutherforth then en- 
deavors to make out that acts of the whole are binding 
upon each, and, without argument or proof, he passes 
over from the whole to the majority, in this way : ' What- 
ever is determined by the whole or by the greater part.' 
This is not establishing rights. There are a few cases 
in history which approach very much to the above pre- 
sumed formation of the state, as that of the Providence 
colony, of which more will be said, but they are ex- 
tremely rare cases, and besides do not solve the ques- 
tion of sovereignty inherent in society, by the political 
fiction of mutual agreement. The state is natural, ne- 
cessary, uninvented. 

Or the government has grown up within the society 
without any specific act of rebeginning, but by many 
distinct expressions or acknowledgments of its most 
essential features, or with the distinct acknowledgment 
of certain mutual relations between the government and 
the state, as is the case in England. With regard to 
the latter, I instance the act of settlement or bill of 
rights. 

Or the government has grown up within the society, 
without any public and definite expression of its rela- 
tions to the state, and has perhaps itself greatly cooper- 
ated to form that state, and receives the support of the 
people, as is the case in Prussia. 

Or the government is forced upon the people, as was 
the case, for instance, with the kingdom of Westphalia, 
founded by Napoleon, and given by him to his brother 



276 The State. [book ii. 

Jeronimus ; or the people have never yet reflected on 
subjects of right, and live in a low state of political 
civilisation. In the first case, society is the acknow- 
ledged source of power ; in the second, the source is 
more distinctly acknowledged by every act of the nature 
alluded to ; in the third, it is clear that government de- 
rives its power from society, which supports it, and 
which government rules in a manner to obtain this sup- 
port. If the people were to rise against it, and to estab- 
lish another one, the question would arise, which I 
have answered already in this paragraph, Does the gov- 
ernment take the sovereignty along with it 1 The change 
once effected, who would deny the new government the 
lawfulness of its actions? In the last case, who im- 
poses the government ? At the beginning, it may be an 
entirely foreign army, or foreign money, by which a 
sufficient party is bought to support it. But can this 
last any length of time, without at least the acquiescence 
of the people ? The question always turns upon this 
point, Does the state accept the government, or the 
government the state 1 The answer is clear. The 
government is obliged, do what it may, to adopt the 
immense mass of existing jural relations and their cor- 
responding laws. If we take the Barbary states as an 
example, where a soldiery, recruited by foreigners, rule 
with iron sway over the people, we shall find one of two 
things. Either even there the people acquiesce for the 
time in it, because they prefer this vicious government 
to the personal dangers to which an attempt at change 
would expose them — and though I may have a right to 
do a thing, it may be inexpedient, and, in many cases, 
wicked, in consequence of inexpediency, to make use 
of the right, if I expose thereby inconsiderately many of 



sec. lxxi.] Chieftains originally Elective. 277 

my fellow-beings to danger — or the power of the sol- 
diery effectually prevents all attempts at change. If the 
latter be the case, then it is a state of things entirely 
founded upon brutal force, which prevents for a time the 
sovereign power from acting, as brutal force may pre- 
vent almost any power from acting. Every institution 
must go through a transition state at some period of its 
development. If an opponent were to object, ' Still, is 
it not a state ? ' I would say, ' hardly ; but be it so, would 
any one, even the stanchest legitimist, deny the op- 
pressed the perfect right to free themselves ? ' Destroy 
that government, if government you can call it, and the 
dey, with his adherents, will not take the sovereign 
power with him, but the freed people will at once exer- 
cise it. All human institutions, all great ideas, develop 
themselves gradually, per intervalla ac spiramenta tem- 
poris, and whenever society chooses to act, it can do so, 
and has the right to provide for what is necessary for 
itself. 

LXXI. As soon as the strictly patriarchal government 
ceases, we find that the chiefs, sheiks, kings or whatever 
they may be called, are most generally eligible, or the 
people elect them whenever they choose. Strictly he- 
reditary governments, with a fixed line of descent, are 
but of late origin, gradually established by acquiescence, 
or according to some particular views prevailing at the 
time, e. g. that of inheritance in general in the feudal 
times. See Palgrave's Anglo-Saxon Commonwealth 
and Turner, Hist, of Anglo- Sax. VIII, I. The descent 
of the crown by primogeniture is of but very late origin. 
The less the king became a mere feudal chief, and the 
more he became to be considered as the head of the 



278 The State. [book ii. 

government of society, in short, the more clearly the 
idea of the state rose out of the feudal system, the 
more the indivisibility of the state became necessary, 
and the more clearly did people see that an elective 
monarchy is that government which offers, in most, 
perhaps in all cases, the least advantages of all. In 
Russia the czar is still held to have the right of 
appointing his successor. In England parliament has 
the acknowledged right of the settlement of the crown. 
But nowhere does history show that there is some 
divine right connected with the descent of the crown. 
Philip II of Spain endeavored to exclude don Carlos, 
his son. Was it a divine right in Philip to settle the 
succession? Carlos, the present pretender, declares 
that Ferdinand VII, his brother, had no right to change 
the succession ; he, therefore, according to Carlos, can- 
not have been sovereign in the full sense of the word. 
Frederic William I of Prussia contemplated the exclu- 
sion of his first born son (Frederic the Great) from the 
throne. The sovereignty cannot reside in the reigning 
family, because the descent of the crown is variously 
regulated by law ; this law then regulating the descent 
of sovereignty must be superior to it, it seems ; then it 
cannot be sovereignty. In some countries the crown 
descends from male to male only, in others the women 
are included ; yet the elder female giving way to the 
younger male in direct line ; and when captain Cooke 
visited Otaheite he found, that the law of the land was, 
that the king rules, the moment a son is bom to him, 
merely for the latter, who assumed the government as 
he became of age, whether the father was living or not ; 
in other countries, again, the monarch is elected. 



sec. lxxii.] Power in the People. 279 

LXXII. When the German emperor had been elect- 
ed by the seven chief princes of the empire, called elec- 
tors, he showed himself to the people, who were asked, 
whether they would have him. After they had ex- 
claimed fiat ! fiat ! fiat ! he was crowned. This had 
become, of course, a mere form, but it shows sufficiently 
the original view taken of the power of the emperor, 
or the theory upon which it was founded. See section 
LIX, this book. Endless, indeed, would be the in- 
stances to show that from earliest times the view was 
taken, because the fact existing, that rulers had the 
power from the people, that it is a vested and not a 
primordial power, depending on conditions, which, if 
not specified, is, and cannot otherwise be, than the 
condition : ■ as long as thou performest that for which 
rulers are appointed,' from the Arragonian, 'if thou not, 
we not ■ (y se no, no), or the Swedish, ' we will remain 
faithful to the king and keep our oaths, provided that 
he do so' (at the diet at Siiderkoping in 1595), to any 
great changes which have happened from time to time, 
and must happen, whenever society finds or thinks to 
find, that those who have supreme power, use it to the 
essential disadvantage of society. Many persons call 
this the doctrine of revolution, because the people may 
often think that government acts wrong, when, in fact, 
it acts most wisely, and that all stability of government, 
so important to society, would be undermined, if society 
could change it whenever it deems proper. Apart from 
the fact that, whether pleasant or no, dangerous or no, 
such is the fact, founded in the very nature of things, it 
need only be suggested, whether indeed the theory, 
that kings have a right of their own, no matter whence 
it comes, and that they do not owe their power to 



280 The State. [book ii. 

the people is not far more revolutionary and danger- 
ous to the stability of governments. People, history 
shows, are not so easily movable as individuals, nor 
can they be ; and where, indeed, is any guarantee, that 
the monarch, a frail individual after all, like all the rest 
of mortals, will not abuse his power, nay will not be 
obliged to abuse it, because he is finite and subject to 
all the influences of humanity, united with a high degree 
of power (1). 

(1) A lately published work by Mr. Michelet, Origines du Droit 
Frangais, contains many passages interesting in regard to the 
subject treated of in the above section. It is always pleasing 
to find an important theory unequivocally and succinctly pro- 
nounced, be it in words or symbols, and I do not hesitate to 
quote, on that account, the following passage : 

" The duke of Corinthia was not allowed to sit upon his marble 
throne till he had given money. This donation was the coemptio, 
the purchase of his right. Nowhere does the sovereignty of the 
people (as a sleeping abstract annunciation) appear more haughtily 
declared than in this formality. It bears the seal of a remote 
antiquity, of an Homeric or biblical simplicity. The duke walked 
towards the marble throne in the dress of a peasant. But a real 
peasant already occupied it, attended by the sad and severe sym- 
bols of the laboring people — the black bull and the lean horse. 
Then commenced this rude dialogue. And who so proudly dares 
enter here? said the peasant. Is he a just judge? Has he the 
good of the country at heart ? Is he born free and a christian? He 
is, and he will, answered the duke. I demand, then, by what right, 
retorted the peasant, he will force me to quit this place ? He will 
buy it of you, was the answer, for sixty pennies, and the horse and 
the bull shall be yours, &c. No less ancient or deeply significant 
was another part of the same ceremony. Whilst the duke bran- 
dished his sword towards the four winds, whilst he sat with his 
face to the sun and conferred fiefs, three families had a right to 
mow, to pillage and to burn. The interregnum of the sovereign 
power was thus represented as the sleep of the law ; and the people 
saw in this form that they must make haste to abdicate and to give 
themselves a defender." 



sec. lxxiii.] Founded on Opinion. 281 

LXXIII. From the foregoing it will be easy to judge 
in how far Hume was correct, when he said, that 
opinion is the first foundation of all power (1). It is, 
questionless, true, that a monarch of himself can do no- 
thing ; he may effect much against the true interest of 
the people, by an army and money. But who compose 
this army, who gives the money ? The first cannot be 
drawn together by the physical force, or any super- 
natural power of the monarch, nor can the latter be ex- 
tracted from the people by any such means. Consent, 
from whatever source it may flow, is requisite ; for, of 
himself the monarch is but a human individual, like any 
other mortal being, as we see at the moment when con- 
sent or support is withdrawn, if any doubt could exist. 
A state may, indeed, for a long time, be organised like a 
man-of-war, on board which the marines are used to 
keep the sailors in due order, and to watch over them if 
in irons ; and sailors must keep the marines subdued, 
should they become mutinous. But what could the cap- 
tain and all the officers effect, if at heart the crew's opin- 
ion were not with them ? Would they not be thrown 
overboard ? If, however, by opinion we mean something 
of which we are clearly conscious, in this case, an avow- 
ed and positive assent, and not only the absence of dis- 
sent, the expression is not so correct. States exist long 
before men come to a clear perception of the character 
and necessity of this institution, as we have seen, be- 
cause they cannot live without right, without law. Be 
it however granted that opinion is the first foundation 
of all power, it remains still to be explained, whence 
opinion receives the authority to establish that power. 
Opinion is the support of all vested or secondary power, 

vol. i. 36 



282 The State. [book ii. 

and a mighty one, indeed, as has been seen, it is of itself. 
But the first source of all power is sovereignty. 

(1) Essay IV of the First Principles of Government. 

LXXIV. Had the terms state, government, sovereign- 
ty, supreme power, and other important ones in political 
terminology, been always used with precision, or had it 
been possible, according to the existing stages of civil 
progress, strictly to discriminate them, far less dispute, 
with regard to the true source of power, would have 
afflicted mankind. Attention is first attracted by out- 
ward, prominent marks, and the supreme power may 
well be called the prominent, outward mark of the state. 
It was natural, therefore, that this should be frequently 
taken for the sign, attribute and essence of the state, and 
that great confusion should exist respecting the persons 
who wielded this power, the power itself, and the state 
for which it is wielded. But if the government is not the 
monarch, the monarch not the state, if ' the state will 
endure,' though Louis XIV may die, it clearly follows 
that sovereignty is an attribute of the state, not of the 
monarch. Many circumstances have contributed to in- 
crease the confusion, even the origin of the word sove- 
reign. Sovereign (from the French, a word to be found 
in all the idioms of Latin origin, from supremus), meant 
originally, highest, excellent, and was the same with 
supreme (1). It was applied therefore to the monarch, 
as highest, chief, especially in the feudal times, when the 
king or prince was not monarch in the sense in which we 
take the word, but the chief one, the leader, frequently the 
primus inter pares. Thus prince, komprinceps, the first, 
chief one, the German Fi'irst (which meant originally 



sec. lxxiv.] The Prince, 283 

what the English first now signifies, and is the superla- 
tive of nor, pronounced fore, the English before, mean- 
ing therefore, the foremost, the highest, so that actually 
in the ancient Mirror of the Suabians, a collection of Sua- 
bian law, chap. cxv. Princeps and Furst are explained by 
vorderst, i. e. fore -most) ; the Swedish Fbrste, Danish 
Fyrste, and Dutch Vorst, all lead to the same original idea. 
The meaning was plain and simple, just as dux or duke 
and Herzog, without any mysteriousness as to the extent 
or origin of the power. Religion, as embodied in the 
church, and not only as the spiritual life of the individ- 
ual, and being the main moving principle of the middle 
ages, penetrating every form and substance, became the 
cause that ideas, drawn from the bible, were carried 
over to the crowned heads of Christianity. They came 
to be called the anointed of the Lord, as the kings of 
Israel were. The essential character of the Israelitic 
government was theocratic, and it seems that Moses 
was not desirous of establishing a monarchy (Levit. xvii. 
14-20). But the theocratic government having almost 
entirely decayed after Joshua, the people asked Samuel, 
himself not of the Levitic tribe (1 Sam. i. 1), to give 
them a king. He yielded with great reluctance (1 Sam. 
viii. 5-22). The king, being called to the crown by 
theocratic choice, was considered the vicegerent of Jeho- 
vah, and united the dignity of the priest with the regal 
power, which yet was limited, partly by the terms of 
election, the ancient liberties of the people, and the con- 
stitution of the tribes (2). These theocratic peculiarities 
found, as far as the altered state of things admitted, a 
ready reception, and though the supremacy of the church 
and absence of national churches, did not allow the idea 
of the monarch's responsibility to be extinguished, yet 



284 The State. [book ii. 

some most extravagant ideas grew up. Charles IV, 
emperor of Germany, declared that the souls of princes 
are better endowed by the Lord, than those of common 
people, and that, too, when he recommended so unwor- 
thy a subject as his son Wencislaus to the princes to be 
elected as his successor. The anointing of monarchs 
was believed by many to establish a more direct com- 
munion with the deity. Indeed, there is no accounting 
for the strange views to which people may not be led. 
Pope Alexander VII preferred to promote persons of good 
birth, because he thought, that as princes of the earth 
like to be served by individuals of high families, it must 
be likewise pleasing to the king of kings to be served 
by priests, already by their blood above the rest of men. 
(Ranke : The Popes of the 16th and 17th Centuries, 
vol. iii. p. 119). 

When whole kingdoms, however, had become pro- 
testant, the Jesuits, for the first time in history, dis- 
tinctly pronounced the sovereignty of the people. We 
shall see how they were led to it. It was now for the pro- 
testants to claim the entire independence of monarchs, 
and in some cases they went to a most extravagant idea 
of divine right. The fact, that wherever there is an es- 
tablished church, it ought to be under the superintend- 
ence of the state, else it would be in reality a state 
within the state, and a contradiction in terms, for who 
establishes ? certainly the state, by which is given 
already the foundation of the relation in which both 
must stand — led the protestant monarchs to declare 
themselves the heads or supreme bishops of their re- 
spective national churches. It led them to do it, though 
it is by no means necessary. This, together with the 
gradually vanishing power of the pope, as the national 



sec. lxxiv.] Supreme Power. 285 

governments rose in importance and power, and as the 
stream of civilisation, industry and consequent strength 
passed from the southern European nations to the 
northern, was the cause of a new theory of the divine 
right of kings, and unlimited power, which from the 
times of Filmer and Wandalin down to but recent 
periods has been, at times, pronounced with a degree 
of absurdity, which can only be accounted for by all the 
surrounding circumstances of the time, and is, taken 
without them, utterly inconceivable. This extrava- 
gance is rapidly fading away, and even Chateaubriand 
asserted in one of his speeches in the chamber of 
peers, after the revolution of 1830: 'I do not believe 
in the divine right of kings ; monarchy is no longer a 
religion ; it is a political form.' The duke of Fitz- 
James, whose political views were solely formed upon 
the antiquated theories of French royalty, himself having 
followed the Bourbons into their exile, and being be- 
lieved to have stood in the relation of consanguinity to 
his royal master Charles X, waived the idea of divine 
right, in the chamber of peers, on April 19, 1831, and 
appealed to the people, with a view to establish the 
right of the duke of Bordeaux to the French throne. 
Before the last revolution, it was not uncommon among 
the French royalists to speak of a culte de la monarchies 
meaning a veneration approaching to worship of mon- 
archy, with all the expressive symbols, if not entire 
worship. We, at present, must carefully distinguish 
between sovereignty and supreme power, and though 
etymologically the same words, we have as much right 
to distinguish between them, as between royal and 
regal, and so many similarly related terms. 



286 The State. [book ii. 

(1) Thus we say still ; sovereign contempt, a sovereign remedy. 
The French Dictionary of the Academy, gives the following defi- 
nition of souverain : ce qui est au plus haut point en son genre. 
It speaks of souverainte absolue, Iimitee, hereditaire, &c. Con- 
sequently it means nothing but supremacy, supreme power. The 
Nouveau Diction, universel des Synonymcs, &c. by F. Guizot, 
Paris, 1833, distinguishes between souverain and supreme, that 
the idea of power belongs to the first, and of any elevation to 
the highest degree to the latter. ' God,' it says, ' is the supreme 
being, since he is the being by way of excellence and by es- 
sence ; he is the sovereign lord of all things, inasmuch as he is 
almighty and author of all things.' The ancient parliaments in 
France, the highest judicial courts, were called cours souveraines. 
There existed in Holland, in the fifteenth century, certain socie- 
ties of poets, or, at least, rhymsters, then called rhetoricians. 
Philip the Handsome united the various societies or ' chambers,' 
in the year 1499, and appointed a chamber of fifteen, called ' Jesus 
with the Balsam Flower,' as ' sovereign chamber,' and the chap- 
lain of the prince was made its ' sovereign prince.' Van Campen's 
History of the Netherlands, Hamb. 1831, vol. I. p. 317. 

(2) Manual of Hebrew-Jewish Archaeology by W. M. L. de 
Wette, D. D., Prof, of Theol. in the Univ. of Basle; 2d. ed. Leip- 
zig, 1830, division Royalty. The bible, if not taken as a book 
of religion and history only, may very naturally be abused to prove 
anything and any theory. It is always so when we confound dis- 
tinct spheres. The solar system, with its many stars, has been 
used to prove monarchy, nobility and people to be an order of 
things founded in nature. From the passage in Luke xxii. 38, 
" Domine ecce gladii hie duo : ille autem dixit eis : Satis est," it 
was proved in the middle ages that the two powers, the pope and 
the emperor, must rule over all Christendom. There is nothing that 
cannot be made to support anything, if we once resort to what I 
have called in the Hermeneutics, ex post facto interpretation. 
Every sort of government has been recommended as the most pleas- 
ing to God, because founded upon or copied from the bible, from 
the theory of divine right of monarchs to the harshest democratic 
extravagance; nor have the aristocrats remained behind hand. 
Scheele, a Dutch nobleman, in the middle of the seventeenth cen- 
tury, supported his defence of aristocratic government, in his two 
works De Jure imperii and Libertaspublica, as much by passages of 



sec. lxxv.] Divim Right. 287 

the bible as by political reasons. Who does not know the contra- 
dictory results in politics at which the various parties during the 
English revolution arrived, always deriving, as they pretended and 
sometimes sincerely thought, the truth of their theories from the 
bible. We might with equal justice derive our penal law, architec- 
ture, or the theory of any science or art from it. I have, already on 
former occasions, referred to archbishop Whately's remarks re- 
specting this unhallowed abuse of the bible, in his Introd. Lec- 
tures on Political Economy, Lond. 1831, page 29 &, seq. 

LXXV. We are told that the kings are of God. So 
they are if good, and where monarchy is the best gov- 
ernment for the given circumstances ; because it is the 
will of God that man should live in a state, and conse- 
quently have a government. But surely the people are 
of God too, and what is more, they form their own 
object, while governments are but a means. Nor can 
it be seriously maintained, that every monarch that ever 
ruled has been such by the special direction or appoint- 
ment of God. Was every Chinese emperor, every sultan, 
every African king, every Indian chief specially appoint- 
ed by divine interposition ? They are not civilised, it is 
perhaps objected ? Were Caligula and the long train of 
equally insane Roman emperors, of God ? They were 
not christians. Then, was the Austrian line of rulers in 
Spain, w r as the Bourbon line in that same country, of 
God ? Why should we pronounce blasphemies ? Were 
James and Charles I with their Buckingham, of God ? 
Were Charles II, Henry VIII, lewd Elizabeth of Rus- 
sia, Charles XI of France, Louis XV, pope Alexander 
VI, was the lately expelled duke of Brunswick in his 
madness, of God ? He was ; but so are wolves in the 
forest. Was Napoleon of God ? If so, when did he 
begin to be so ? 

If, however, the expression means only that they 



288 The State. [book ii. 

were monarchs in consequence of a combination of 
many laws of the universe, then it means nothing, be- 
cause then everything is of God, and we need not 
mention it of monarchs especially. Nor do I maintain 
that many dark pages of the history of the people 
cannot be mentioned ; all I desire to say, is, that no- 
thing can be established in this way. If there is 
anything mysterious about the monarch, something by 
which sovereignty is personally and indelibly attached 
to him, then I repeat, Charles X must have taken it 
in 1830 to Holyrood castle, and France was from that 
moment incapacitated to be a state, and perform all 
necessary acts of sovereignty. Yet when Louis XVIII 
returned to France in 1814, all laws, which were not 
specifically abolished, remained in force, and even the 
pension of Robespierre's sister continued to be paid. 

Great Britain did not acknowledge Napoleon as 
emperor ; yet did she on that account consider Louis 
XVIII, when residing in England, as sovereign? 
Would not any grand jury have found a true bill 
against him had he transgressed the laws ? There is 
undoubtedly some indistinct idea, that sovereignty once 
enjoyed prevents the individual from ever becoming an 
entire subject again, and kings who abdicate continue 
in many cases to enjoy the title of majesty ; but I 
do not speak here of matters of courtesy. Christina II 
considered herself still a sovereign, after having abdi- 
cated the crown of Sweden, and her . execution of 
Monaldeschi was founded upon this idea. With her 
the notion was peculiarly wrong, because she acknow- 
ledged her successor. She certainly therefore could not 
be sovereign of Sweden. Of what was she then sove- 
reign ? Was she sovereign in her own person, without 



sec. lxxvi.] Legitimacy. 289 

any reference to any country, then why was she not 
sovereign from the moment of her birth, and became 
only such when her father's crown devolved upon her ? 
Until we are not shown individuals who are, somehow 
or other, sovereigns within themselves, without refer- 
ence to anything without them, sovereigns of themselves, 
and not as rulers over a country, we cannot believe in 
the sovereignty of persons. 

LXXVI. If there is a legitimacy personally in the 
monarch, and not in the laws willed or suffered by so- 
ciety, then how does it happen that England, France, 
Portugal, Brazil, Sweden, Holland, Prussia, Spain, Russia, 
Belgium, Brunswick, are ruled by monarchs who hold 
the sceptre, or rule according to fundamental laws, es- 
tablished, in consequence of revolutions, or have seated 
themselves upon the throne by force I How did Russia, 
acquire her right to rule over the Cossacks, who were 
severed from Poland by a revolution ? Yet all these 
monarchs consider themselves, and generally are con- 
sidered, lawful rulers (1). 

There must then be something beyond them, which 
keeps them in those high stations; it cannot be inhe- 
rent. It is the state, which is infinitely above the mon- 
arch, which can see pass away race after race, and yet 
remains the same. Many enlightened monarchs have 
well penetrated the character of their office. Frederic 
the Great of Prussia, in his work on the Forms of Gov- 
ernment, calls the king ' the first servant of the state, 
obliged to act with probity, wisdom and perfect disin- 
terestedness, as if at every moment he should give ac- 
count to his fellow-citizens.' (Frederic's Works, Berlin, 
1788, Vol. VI, page 84). He speaks repeatedly of the 

vol.1. 37 



290 The State. [book ii. 

fellow-citizens of the king ; it is not an inadvertent ex- 
pression, nor an over-modest one, as some late German 
philosophers, desirous to theorise the mysterious char- 
acter of the word ' sovereign,' have called it. Frederic 
says in the same work, * the citizens have granted pre- 
eminence to one of their equals only, 5 &,c. Joseph II, 
emperor of Germany, and hereditary prince of the whole 
Austrian monarchy, called himself the first subject of the 
state (Memoires du Prince de Ligne, Paris, 1827, Vol. 
I, page 237). He knew too that the monarch is for 
the people, not the people for him. When on his 
death-bed he said to Prince de Ligne, a native of the 
Austrian Netherlands, which just then were in rebel- 
lion, ' Go to the Netherlands ; make them return to 
their sovereign ; and if you cannot succeed, remain 
there ; you must not sacrifice your interests to me ; 
you have children.' (Ibid. Vol. I. page 236). Had 
not so untenable and undefinable a view of the inhe- 
rent character of the monarch been taken, man would 
never have thought of claiming for him a position above 
the law, which it has been shown, he never can, in 
reality, occupy. 

There have always been flatterers who would please 
the ears of kings with these ruinous theories. Anax- 
archas declared to Alexander, after he had killed Clitus, 
'by the throne of Jupiter and of kings sits Themis 
and stamps their arbitrary will into what is right.' 
Even without a veto 1 But Anaxarchas was an Ab- 
derite ! Pliny's simple, non est princeps supra leges, 
sed leges supra principem, can never be obliterated or 
changed. ' Nihil aut aequius aut tutius, quam ut regnet 
rex secundum leges moresque veteres.' Grotius, 
Epist. Pars I, ep. 1431, dated October 27, 1640. 



sec. lxxvl] Monarchs not Sovereigns. 291 

The Romans knew the difference between supreme 
and sovereign power well. 'The granting the full 
franchise,' says Niebuhr, vol. ii. page 299, Roman 
Hist. Amer. ed., ' to municipal towns was so strictly 
deemed an act of the sovereign power, that the tribunes 
in the sixth century would not so much as allow the 
senate the right of proposing it.' — Who was the state, 
when Philip II of Spain declared, upon the decision 
of the inquisition, that all the inhabitants of the Neth- 
erlands were guilty of high treason ; that those, there- 
fore, who did not fall under the executioner's axe, 
enjoyed their life by royal grace alone ? (2) Philip or 
the people ? 

(1) The government of England was settled by the ' glorious 
revolution of 1688.' The present dynasty of France was elevated 
upon the throne by the revolution of 1830. The house of Bra- 
ganza obtained the Portuguese crown by the revolution of 1640 
against Spain, when John, duke of Braganza, was made king John 
IV of Portugal. Brazil was raised into an independent empire in 
1822, by a revolution which declared don Pedro, son of the king 
of Portugal, first emperor. In Sweden, a revolution in 1809, 
forced Gustavus IV to abdicate for himself and his descendants. 
His uncle Charles XIII was made king, and when the elected 
crown prince, the duke Charles Augustus of Augustenburg died, 
in 1810, the French marshal Bernadotte, Prince of Pontecorvo, 
was elected crown-prince. He ascended the throne in 1818, 
under the name of Charles XIV John. The reigning house in 
the Netherlands are the descendants of the great William of 
Orange, the Silent, who directed the revolution of the Netherlands 
against Spain, in the 16th century. Prussia Proper, which be- 
came the foundation of the kingdom of Prussia, and gave it its 
name, was made, in 1525, a hereditary dukedom by the revolution 
of markgrave Albrecht, elected master of the Teutonic order, 
one of the catholic orders of knights, who so remarkably united 
the characters of conquering knights with clerical vows. The 
country was not his, nor the government hereditary. He became 



292 The State. [book ii. 

protestant and usurped supreme power. This is not the place to 
investigate what radical changes so mighty events as the reforma- 
tion may render necessary, all that is maintained is, that Albrecht 
became duke of Prussia by high-handed revolution. (Stenzel's 
Hist, of Pruss. States, in Heeren &, Uckert, Hamb. 1830, vol. I, 
page 292 & seq.) 

The ruling race of Spain occupies the throne in consequence 
of conquest, for the decision of the war of Spanish succession 
between the Bourbons and the house of Hapsburg, in favor of the 
former, can hardly be called anything else. In Russia, Catharine 
II made herself empress by a revolution against her husband 
Peter III, who was killed. So was Iwan, who had the next claim 
upon the throne, according to the rules of hereditary descent of 
crowns. Her son, Paul I, was deposed and killed in 1801, and 
succeeded by Alexander I. In the middle of the 17th century 
the Cossacks revolted against Poland and threw themselves into 
the arms of Russia, to which empire they have ever since belonged. 
Belgium severed from the kingdom of the Netherlands by a revo- 
lution in 1830, and constituted herself into a kingdom, calling 
prince Leopold of Saxe-Coburg to the throne. William, the reign- 
ing duke of Brunswick, succeeded by a revolution in 1830, his 
elder brother Charles, who had committed most surprising extra- 
vagancies, illegal acts and cruelties, acknowledged as such by the 
neighboring governments as well as by the king of England, who 
repeatedly endeavored to bring him back to reason. 

(2) Meteren, History of the Netherlands, folio 49. 

LXXVII. Yet the monarch of Great Britain is called 
the sovereign, and various maxims in the British con- 
stitutional law, such as : the king can do no wrong, 
he is the fountain of honor, every British subject owes 
indissoluble allegiance to him, seem, at first glance, 
to express something of that power of powers, that 
self-sufficient source of all power, which has been 
designated in the course of this work as the great 
attribute of sovereignty. But is it so in reality ? Are 
the maxims just mentioned substantial truths, that is, 



sec. lxxvii.] British Monarch, 293 

truths on which we can farther build, or from which we 
can deduce farther truths as binding as the first propo- 
sition, or are they rather constitutional technicalities, 
framed and worded to complete a system, to give it that 
logical symmetry which gives at least an apparent finish 
and absoluteness to a system, and for the sake of which 
we find that in all the fabrics which human reason has 
reared in the various theories of science and dogmatics, 
men have resorted to so many fictions? The differ- 
ence is important, and unfortunately frequently forgot- 
ten. If a position be a truth in itself, we may draw 
legitimate consequences from it ; if it be an illustration, 
a summing up of what has been stated by way of 
simile, then we must stop with its statement, or we 
shall expose ourselves to the most dangerous argu- 
mentation. 

A simile, even the best, carries always along with it, 
not only that which applies to the given case, but also 
that which does not, and if we assume the simile itself 
as full and complete truth, the latter will be taken as a 
ground of truth as well as the former. A striking 
instance is given in that passage of the bible, in which 
the coming of the Lord is likened to the sudden ap- 
pearance of a thief in the night — a simile used to 
express the degree of unpreparedness in which many 
will find themselves at the coming of the Lord. This 
simile is so strikingly applicable only in a certain degree 
to the case, that no man has ever thought of assuming 
it as truth if carried beyond the point of its palpable 
application; but there are many similes used in im- 
portant matters, not differing as to this point from the 
one mentioned, though it is not at once so glaring and 
apparent. 



294 The State. [book il 

If the British commentators upon constitutional law 
had always used the word crown instead of king or 
sovereign, respecting those important maxims, the dan- 
ger of confounding the king's personality with his 
political authority would have been avoided in a great 
measure. Others would have borne much more the 
stamp of truth. Thus it is said, 6 the king never dies,' 
while it is meant to express the crown never dies, or 
the' crown does not follow the head, which wore it for 
a time, to the tomb, because all individuals must die, 
all hands, even those that grasp a sceptre, are grasped 
in turn by the cold hand of death, but Britain dieth 
not The crown has always a living brow to support 
it, is the true and unparadoxical meaning of the maxim, 
the king never dies. All members of parliament must 
die, but parliament dieth not. In short, the king never 
dies, means that the chancery does not die with the 
chancellor, the fleet with the admiral, the bank with the 
director, the city with the mayor, the people with their 
ruler, and no more. 

As to the oath of allegiance, I have treated of it 
already. The queen Victoria, in some of her late com- 
munications to the two houses, respecting the Canadas, 
speaks of ' my provinces,' ' my colonies.' Now, there is 
probably no Englishman living who would pretend that 
the pronoun my, which, as has been mentioned in a 
previous chapter, is used to express an infinite variety 
of relations between two persons or persons and things, 
expresses in this case, used by a young lady of eigh- 
teen years, the same meaning as that in which she 
applies it daily, for instance to household articles. The 
English believe not only that monarchy (not ' sur- 
rounded by republican institutions,' but forming, in- 



sec. lxxvii.] British Monarch. 295 

deed, to all intents and purposes a great republic ; for 
which of the two, George III and Pitt, with the parlia- 
ment, was substantially the ruler, and which became 
the acter-out, the executor of the other?) is for their 
given circumstances far the best government, but also 
that, upon the whole, the order of succession by which 
females may obtain the crown in default of male issue, is 
more convenient for them than any other would be, but 
so good an authority as Dr. Lushington, lately said in 
the commons, with regard to a suggestion of his, that 
the king of Hanover might be excluded from the suc- 
cession, - The line of succession, as well as the consti- 
tution itself, was framed for the good of the people, and 
if the existing law ceased to be operative in that re- 
spect, then it came for the consideration of parliament 
what was to be done.' (As quoted by the papers of 
the day). The queen, in her first proclamation, said, 
'by the death of his majesty, my beloved uncle, has 
devolved upon me the duty of administering the gov- 
ernment of this empire. This awful responsibility,' &c. 
There is nothing about her being the owner of England ; 
in short, she succeeds to the crown, that is, supreme, 
but even that far from being unlimited, power. There 
cannot be now an Englishman who pretends to maintain 
that there is a peculiar quality, called sovereignty, inhe- 
rent in the monarch, and that what in England is called 
sovereignty is essentially something founded on a rela- 
tion between the individual whose brow supports the 
crown and the people. Startling as the declaration, that 
' a people may be without a king, a king cannot be 
without a people ' (Journals of the Commons, vol. i. p. 
156), may have been for some persons under James I, 
it is now too well established a truth to detain us any 



296 The State. [book m 

longer. ' Do not imagine,' wrote Frederic the Great to 
the young duke of Wurtemberg, who had been educated 
under his eyes, in his Monarch's Mirror, handed to the 
duke on the day of his departure from Berlin (1744), 'that 
Wurtemberg exists for you, but believe that providence 
has placed you in the world to make the people happy/ 

I have seen it stated, indeed, that the schoolmaster is 
likewise for the school, and not the school for the teach- 
er, yet that it would be senseless to claim for the child- 
ren the right to prescribe rules for the teacher. All that 
is to be answered is, that men are not children, and 
children not men, and that there exists this slight differ- 
ence, that the children without a master form no school, 
but the people without a monarch are still a people, and 
that that which makes the king a king, the ruling, may 
be done sometimes by others ; or have the Swiss, have 
the Americans, had all antiquity, no governments 1 Are 
we all lost sheep without shepherds ? 

According to the principle laid down in this work, 
that we must learn the true nature of a thing, from its 
most perfect or most developed state, and not from its 
incipient stages, still less from stages of corruption or 
violent distortion (Non in depravatis, sed in his quae bene 
secundum naturam se habent, considerandum est quid 
sit naturale. Aristotle, Polit. L. 1), we are not bound 
to take the most distant, or the most despotic periods 
of English history, in order to understand its true charac- 
ter. Yet even if we pursue this plan, which was the 
one that Hume proposed to himself, we shall find that 
the British monarch was never considered as possessing 
those attributes, without which no clear idea can be 
connected with the term sovereignty, as has been suc- 
cessfully shown by Mr. Brodie, in his learned history of 



sec. lxxvii.] Declaration of Rights. 297 

the British empire, especially in the first volume, a 
work of great value for constitutional history. As to the 
later times, I refer the reader to Hallam's Constitutional 
History of England, and to Blackstone, i. 192 & seq., 
and iv. 440. I shall only mention here a passage of 
25 Henry VIII, c. 21, from Sir Edward Coke, copied 
from Brodie, i. 286. " Wherein by authority of parlia- 
ment, it is enacted and declared (directing this declara- 
tion to the king), that this your grace's realm, recog- 
nising no superior under God but only your grace, hath 
been, and is, free from subjection to any man's laws, but 
only to such as have been devised, made, and ordained, 
within this realm for the wealth of the same, or to such 
other, as by sufferance of your grace and your progeni- 
tors, the people of this your realm have taken at their 
free liberty, by their own consent, to be used amongst 
them, and have bound themselves by long use and cus- 
tom to the observance of the same, not as to the obser- 
vance of the laws of any foreign prince, potentate or 
prelate, but as to the customed and ancient laws of this 
realm, originally established as law of the same, by 
said sufferance, consents and customs, and none other- 
wise." 

If the declaration of rights of 1688 is not a declara- 
tion of the sovereignty of society, then we really do not 
know what the instrument means, and what particle of 
right to the crown William and Mary ever had. But it 
is asserted by tory writers, for instance in the Book of 
the Constitution, Glasgow and Edinb. 1833, p. 121, 
that had the British possessed the right to choose their 
own governors, * it is clear that the English nation did 
at that time (1688) most solemnly renounce and abdi- 
cate it, for themselves and for all their posterity for 

vol. i. 38 



298 The State. [book il 

ever,' because a subsequent clause of the Bill of Rights 
says that ' the lords spiritual and temporal, and com- 
mons, do, in the name of all the people aforesaid, most 
humbly and faithfully submit themselves, their heirs 
and posterity for ever,' &c. Now the question is, 
what is the meaning of the term ' for ever ' in politics ? 
Has it an absolute meaning, or has it only a meaning 
under and within that sovereignty which is above all 
and everything ? History proves that the latter is the 
case ; else there could hardly be an organic change 
of any government However, I wave the argument 
which lies in the total want of right in one generation 
absolutely to bind another, and prove my point from 
the declaration of right itself. The people of England 
submitted themselves 'for ever,' that is, as will be 
admitted, on the terms declared in that bill. It is dis- 
tinctly expressed. Now that same bill says, in para- 
graph X, that every king or queen shall, on taking the 
coronation oath, 'make, subscribe and audibly repeat 
the declaration,' mentioned in the act 30 Charles II, 
entitled, 'An act for more effectually preserving the 
king's person and government by disabling papists 
from sitting in either house of parliament.' This, too, 
was ' for ever,' yet catholics do sit in the two houses 
since 1830, despite the Bill of Rights itself; and it 
was a tory administration under which this organic 
change took place. 

This paragraph may fitly conclude with the words 
of lord Landsdown, spoken after he had been premier, 
no December 26, 1 788, when the regency question was 
under discussion : 

" The principles laid down at the revolution make the 
crown to be, not descendible property, like a pigstye 



sec. lxxviii.] Can the King do no Wrong ? 299 

or a laystall, but a descendible trust for millions and 
ages yet unborn. I contend, therefore, that the hered- 
itary succession cannot be considered as a right. It is 
a mere political expedient, capable of being altered by 
the two houses. In cases of exigence, they have 
always been termed the legislature, in order to pre- 
vent the greatest of all possible evils, a disputed 
succession." 

He also said: "The people, my lords, have rights, j 
Kings and princes have none. The people want nei- I 
ther charters nor precedents to prove their rights ; for 
they are born with every man in every country, and 
exist in all countries alike, though in some they may \ 
have been lost. I wish, therefore, that the question of 
right to exercise the royal authority, which has been 
claimed and asserted, may be decided; in order that 
those who suffer oppression under governments the 
most despotic may be taught their rights as men. 
They will then learn that though their rights are not, 
like ours, secured by precedents and charters, yet as 
soon as they assert their rights they must be acknow- 
ledged" (1). 

(1) Wraxall, Posthumous Memoirs, p. 467, American Edit 

LXXVIII. The king can do no wrong, the king is the 
fountain of honor, are precisely in the same sense true 
and not true, as the preceding maxim, that the king 
never dies, that is, they are fictions or metaphoric ex- 
pressions, and therefore incapable of sustaining any 
argument to be deduced from them, but merely ex- 
pressing an idea already established, and only so far 
as established. Blackstone distinctly claims the same 
inability of doing wrong for each branch of the legis- 



300 The State. [book ii. 

lature (I, 244). They are then no peculiar attributes 
of sovereignty, using the term as applying to the person 
called by the English law, sovereign. Besides, we 
know that the king, even constitutionally, can do 
wrong, and can be declared to have done so, as was 
the case in the bill of rights respecting James II ; that 
there is a ' superiority of the laws above the king,' 
(Blackstone, IY, 440); that the British law 'confirms 
the doctrine of resistance, when the executive magis- 
trate endeavors to subvert the constitution ' (Ibid). 
Everything cum granu sails. Even the Catholics them- 
selves, when the infallibility of the pope was received 
in a far wider meaning than at present, asserted, re- 
specting the dispute between the Jesuits and Jansenists, 
that the pope's infallibility cannot extend to facts. The 
pope had declared that certain doctrines were damna- 
ble. The Jansenists said they were not contained in 
the works of Jansenius, upon which the pope declared 
those damnable doctrines were contained in the work 
' St. Augustine • by Jansenius. It is well known that 
the pope had to yield in a considerable degree. It 
is certainly a very curious fact in the history of consti- 
tutions, that the fundamental law of the kingdom of the 
Netherlands, pronounces nowhere the irresponsibility 
of the king or responsibility of ministers ; but according 
to paragraph 1 79 receives ' complaints against the king,' 
and sends them to the supreme court, and that this 
constitution was drawn up by the king himself, who on 
his return in 1813, insisted upon being made no more 
than what he had been, stadtholder. When at last 
he was obliged to yield to the earnest representations 
of the people, he conceded to take the crown on con- 



sec. lxxviii.] King^Fountain of Honor. 301 

dition of a constitution which should ' protect the liberty 
of the citizens against all possible intrusions.' (1) 

So convinced are the English that the king can do 
wrong, that they do not allow him to do anything which 
is not considered as having been advised by his min- 
isters, so that there may be men responsible for his 
great acts ; and on the other hand, the law does not 
hear if the king assures on his honor that certain ob- 
jectionable acts were personally ordered by him, as 
was the case in Strafford's trial. No one shall obey 
the king personally and individually, but only politically, 
surrounded by the law. Whether the maxim, the king 
can do no wrong with responsible ministers, be a well 
contrived expedient, is another question. I consider 
it as one of the choicest productions in the course of 
constitutional history; but at the same time I say 
with Essex: 'What! cannot princes err? Cannot 
subjects receive wrong ? Is an earthly power or au- 
thority infinite ? Let them (who mean to make 

their profit of princes) acknowledge an infinite absolute- 
ness on earth that do not believe in an absolute infinite- 
ness in heaven.' (His letter to lord keeper Egerton, 
in Essex's Orig. Lett.) 

The king is the fountain of honor, as he is of pardon, 
that is, as he is king altogether, namely, according to 
and limited by laws ; he is not personally the fountain 
of honor. No man would hesitate to receive rather the 
' thanks of parliament ' than a personal mark of honor 
from the monarch, or even an order. The history of this 
expression must probably be sought for in the feudal 
law, in which a barony was called an honor, the honors 
of feudal government were almost if not quite, all an- 
nexed to the seisin and possession of fiefs or feuds, 



302 The State. [book ii. 

which were all holden mediately or immediately of the 
crown. So that saying that the king is the fountain of 
honor, was but another mode of saying that he was 
the lord paramount of the soil. Hence when in pro- 
cess of time, the honorary title of nobility or office 
came to be conferred without the simultaneous grant 
of lands to support it, there was no occasion of any 
change of phraseology, though the import of the word 
* honor ' had become somewhat narrower and less 
substantial than before. Real political honor can no 
more be bestowed by an individual than worth. It is 
society on which it depends. The expression therefore 
amounts only to this, that the monarch is the pro- 
nouncer of honors, and only of certain ones, for, doubt- 
less, it is an honor to sit in parliament, which the king 
does not bestow. The king of Prussia made general 
Blucher prince, the people called him Marshal Forward, 
by which name the Germans love to call him to this 
day. Which was the greatest honor ? The monarch 
can do nothing but pronounce political honor ; and this 
prerogative therefore, as any other, belongs to his politi- 
cal character, and proves no sovereignty, for it would 
always be a second-hand sovereignty, that of the law 
being superior to it, according to the commentators of 
the land themselves. When James II left England, 
was the fountain of honor dried up ? William III came 
and made Bentink duke of Portland. Napoleon found- 
ed the legion of honor; it did not follow him to St. 
Helena, but Louis XVIII became, according to English 
phraseology, its fountain. Charles X left France and 
Louis Philippe became the so-called fountain. Is it not 
then clear that society, the state, is the fountain, and 
the respective monarch, merely the spout, the jet d'eau 



sec. lxxix.] Titles of the King. 303 



through which the well of honor flows ? If, therefore, 
sovereignty, as we have defined it, must be somewhere, 
it is certainly not in the king that we have to find it, and 
if the word sovereign is nevertheless applied to the 
monarch, it means nothing more than supreme execu- 
tive power within and under the constitution, which 
comes from sources of superior power. 

(1) Van Campen, History of the Netherl. vol. II, p. 581. Hee- 
ren & Uckert, Hamb. 1833. 



LXXIX. It would be certainly unwise in any British 
politician to struggle for a change of the monarch's title, 
or that in future he should be called king of the Eng- 
lish and not of England, as long as no party assumes 
these words as a foundation to rest important claims 
upon ; simply because it would be a waste of energy, 
while the substance has been already obtained. That, 
however, monarchs of civically developed nations are 
the monarchs, i. e. chief magistrates of the people, and 
not the monarchs of the soil, will have sufficiently ap- 
peared. In France the change of the title was im- 
portant, because it was meant to indicate a change of 
things. By the first constitution (of 1791) the king 
was styled king of the French (ch. II. sect. i. 2) ; Na- 
poleon was styled emperor of the French. When 
Louis XVIII ascended the throne in 1814, he re-as- 
sumed the old title of king of France and Navarre ; 
but, in 1830, upon the expulsion of Charles X, the title 
of king of the French was re-established. Those who 
have endeavored to ridicule this idea as a modern fancy 
err greatly (1). I repeat, as to mere correctness, there 
can be no doubt that this is the true title, in the eye 



304 The State, [book i% 

of all who consider the king as part of and within the 
government of the country. 

(1) Mary queen of Scots. Philip IV (1285— 1314) styles him- 
self writing to pope Boniface, Roi des Frangois. Chateaubriand, 
Etudes Historiques, vol. III. p. 331. An engagement between Philip 
II of France and Richard of England, was signed thus: Moi 
Philippe, roi des Francois envers Richard mon ami, et mon fidele 
vassal : Moi Richard, roi des Anglais, envers Philippe, mon 
seignieur et mon ami. Biogr. Universelle, vol. xxxix. p. 94. Gus- 
tavus Adolphus styled himself, by the grace of God chosen and 
hereditary prince of the Swedes, Goths and Wends. Zober, Un- 
printed Letters of Wallenstein and Gustavus Adolphus ; Stralsund, 
1830. The instances might be greatly multiplied. In Latin the 
king of Prussia is styled, Rex Borussorum, analogous to the an- 
cient Rex Romanorum. 



(305) 



CHAPTER VII. 

Public Power. — Why necessary ? — Why must it be restrained ? — Abuse 
of Power general. — Man justly loves to act, to produce, to effect some- 
thing. — It is the inherent character of all Power to increase if un- 
checked. — Power delights, and is not willingly given up.— Power in 
all Men and all Spheres is irritated at Opposition. — Man judges ac- 
cording to his Position, those in Power differently from those out of 
it. — Power is in its Character imposing. 

LXXX. The state stands in need of power for its 
government or organism through which it obtains, or 
strives to obtain, the state objects. Let us call it public 
power. Public power may rest on a moral basis, for 
instance, people obey a law because it is a law, not be- 
cause a penalty is attached to it In the year 1836, the 
members of the South Carolina legislature resolved 
unanimously, in a caucus, to throw away the presi- 
dential vote, or to vote for an imaginary person, because 
they were not satisfied with either candidate. When, 
however, the vote was to be taken upon this prelimi- 
nary resolution, it was suggested that the constitution 
of the United States says, art. ii. sect. 1, 3, that the 
electors shall 'vote by ballot for two persons.' The 
legislature, therefore, found. themselves bound to vote 
for some actual citizen or other, and gave their vote 
for Mr. Mangum, who was no candidate. It was a 
purely moral act. 

In former times, the citizens of Hamburgh contributed 

vol. i. 39 



306 The State. [book ii. 

their quota of taxes, unseen and uncounted, after the 
general sum had been granted. 

Or government may have the right to bestow honors 
and thereby exercise power. Or public power may rest 
on a physical basis, for instance, when the constable 
with his assistants carries off a person ; or government 
sends soldiers to enforce obedience. Or it may rest on 
a basis of a mixed character, for instance, the pecuniary 
means at the disposal of government. Pecuniary re- 
ward cannot be strictly called physical or moral. 

Power and authority are promiscuously used in poli- 
tics. Authority is the lawfully bestowed, or, by com- 
mon consent, acknowledged right of performing certain 
public acts. The supposition is, that where this right 
exists, the power to make use of it exists, and hence 
the promiscuous use of the two terms. Thus, the con- 
stitution of the United States, art. i. sect. 8, says, ' the 
congress shall have power,' &x. We have seen already 
that all power must originally rest upon a moral basis, 
not indeed in each individual case. 

LXXXI. Why does the state want power for its 
government ? Because : 

1. Man is a physical, intellectual and moral individual 
of himself, and shall remain so. His worth and value 
depend upon it ; and yet he is bound to live in society, 
and this society shall, according to the great plans of 
the creator, move from one stage of civilisation to 
another. Both require an infinite variety in the com- 
bination of the elements which constitute the inner man, 
and infinite changes of his social relations, of which an 
infinite variety of character, desires, views and actions 
is the necessary consequence and indeed the object. 



sec. lxxxi.] Public Power. 307 

Astonishing as the combinatory power throughout the 
rest of creation may appear to us, in man it operates 
most surprisingly. Animals can live in large numbers 
together without many jarring interests ; enormous 
herds of buffaloes graze together and rarely fight with 
one another, because their individuality is a merely 
physical one ; they all move simply according to the 
food they find. It has been very erroneously supposed 
that the interests of men cross each other, and that, 
consequently governmental power is requisite, merely 
on account of man's sinfulness. It is one of the first 
principles of mankind, that infinite variety should exist. 
Without it all would stagnate. This variety must lead to 
different views, not only according to men's wickedness, 
but because they are finite beings. Infinite wisdom 
alone, omniscience, can penetrate the essence of all things 
and, consequently, their essential relation to one another. 
Though no citizen were ever actuated by selfishness, 
still, power for the government would be necessary, in 
order to protect the jural relations of the citizens, each 
one of whom can only see and feel first through himself. 
Each man, first of all, is the key through which he has to 
understand that which is around him (1). The variety of 
pursuits and desires, of views which incline either more 
to that which has been and exists or that which is ex- 
pected, cause actions which intercept and contradict 
one another. A very large number of all civil law cases 
originate neither from insufficient laws, nor the evil de- 
signs of the parties, nor even from their litigious spirit, 
but both believe they are right and that it is their duty 
to maintain their right. If then, every man shall have 
his due, how can it be otherwise done than by a higher 
authority and power to sustain the authority ? 



308 The State. [book ii. 

2. The state, through its government, must protect 
each citizen against any violation of his rights by wrong- 
doers within or enemies without. 

3. The state, as a whole, must maintain and protect 
itself against evil designs against its existence, from 
within, and attacks upon its independence from without. 

4. The state, a jural society, must maintain its char- 
acter as such. It must punish violations of rights, not 
only with a view of individual protection (mentioned 
above, 2), but also to maintain its own character as the 
society of right. Without punishment of offences, the 
state would lose its essential character, and society, 
therefore, could no longer exist and pursue its ends as 
society. The state acquires the right to make use of its 
punitory power against offenders by the offence commit- 
ted against it, that is, by each infraction of the law, and 
it is its duty to do so, wherever the general protection, 
physical or moral, requires it. By moral protection I 
mean that which exists in the maintenance of the char- 
acter of the state, i. e. a society of right. Rights exist 
between moral beings only; animals have no rights. 
The state protects against offences both in a psycho- 
logic way, by affixing beforehand a punishment to every 
offence — by warning every one ; in doing so, it leaves 
every one free (2), and in a physical way, after the 
offence has, nevertheless, been committed. 

5. One of the main state objects is, as has been seen, 
the obtaining jointly that which is necessary for society, 
and cannot be obtained by individual exertion — to ob- 
tain publicly, what cannot be obtained privately. This 
too, requires power. 

(1) Let me not be misunderstood as if I were in any, the slight- 
est degree, an advocate of the theory of selfishness or egotism, but 



sec. lxxxi.] Public Power, 309 

lately prevalent in some countries. /There is nothing more bane- \ 
ful to society than the corroding spirit of egotism^ I have given 
my view on the importance of sympathy, in several previous pas- 
sages, still it must not be forgotten, that man cannot by possibility 
see through other eyes than his own, feel through another heart 
than his own. He begins even with regard to his feelings for 
others from the circle around him. Your neighbor's father dies. 
You feel strongly for him, for you know what you felt when your 
own departed. Your neighbor's son broke his arm ; you feel 
strongly, yet differently from what you did when your own son 
was brought home covered with blood. That which happens in 
my sight affects me more than that of which I only hear. Great 
misery in the street in which I live goes more directly to my heart 
than misery at a greater distance. The distress of the Spitalfield 
or Lyons weavers, is read by no one without commiseration 
and lively feeling, yet the distress in our country, our own state, 
community, street, house, affects us more, in the same degree in 
which the circle narrows. The account, that the maids of honor 
of queen Catharine of France tore the clothes from the corpse of 
baron Soubize, slain with so many other noblemen in the royal 
palace during the massacre of St. Bartholomew, and made them- 
selves merry at the spectacle while his blood was yet streaming 
from his wounds (Aubigne, ii. 546. Lacret. ii. 352) ; or that Caesar 
Borgia, having successively murdered, with dagger or poison, his 
own brother, brother-in-law, and hundreds of victims to his lust of 
power, or desire for money, killed Peroto, the favorite of pope 
Alexander VI, Caesar's father, while his victim had sought protec- 
tion under the pontifical robe, and the pope pleaded for him, so 
that the blood of the favorite gushed into the face of the pontiff, 
and that Caesar went forth unpunished (Ranke, Princes and Na- 
tions of Southern Europe. Berlin, 1834, vol. ii. p. 50, where all 
the Italian authorities are given) — these accounts affect us, how- 
ever intense our feelings at all the loathsome crime may be, far 
differently from any act of less criminality, which may occur in 
our own community. There is always, and necessarily must be, 
an essential difference between the effect of anything which affects 
us in a general way only, and that in which we are personally in- 
terested. If it were not so, the world would be in the greatest 
confusion. Every one would make the cause of every one, his own. 



310 The State. [book ii. 

Who could read a single newspaper without being rendered wretch- 
ed almost for life ? Or could we feel any longer, at all, if all the 
joyous events and sad occurrences, past and present, were to excite 
our interest as much as our own 1 In this necessary order of things, 
too, we have, as alluded to in a previous passage, to look for one of 
the deep sources of patriotism. 

(2) Feuerbach, Manual of Penal Law, 10th ed. parag. 10 &seq. 
My views of the punitory power of the state, or the primordial 
right of punishment, and the duty of punishment, as well as on 
various other subjects relating to these, have been given in a popu- 
lar Essay on Subjects of Penal Law, and on Uninterrupted Soli- 
tary Confinement at Labor, as contradistinguished to Solitary 
Confinement at Night and Joint Labor by Day, printed by order 
of the Philadelphia Society for alleviating the Miseries of public 
Prisons, Philadelphia, 1838. 

LXXXII. Why must public power, if once granted, 
be carefully watched, modified, retarded? Because 
public power is not a physical power which can be 
either expressed or limited with absolute definite- 
ness. The 'vessel of the state' is not a steamboat, 
of which we can say it sails with so much horse 
power. Public power is finally always founded upon 
confidence. Make a law ever so definite, circumscribe 
the limits of power which you grant, with ever so much 
care, you must repose confidence in him who has 
finally to carry out that law — the confidence of com- 
mon sense and moral sense. Confidence, not indeed 
unlimited confidence, must be the last vital spark 
which makes a prescribed action a living thing. The 
claim of confidence, so continually proffered by James I 
and Charles I, was not wrong in principle ; the diffi- 
culty lay in the degree of confidence they claimed, 
and both showed themselves unworthy of a far less 
degree. All the wisdom of government depends upon 



sec. lxxxii.] Love of Power. 311 

a proper balance between confidence and distrust. 
Confidence, then, is indispensable ; but this confidence 
will be abused. Why ? Because he who has power, y 
whoever he or they may be, king, ministers, nobles, 
commons, clergy, soldiers, the people, abuse it. Poly- 
bius, the first who reduced the idea of a circle of politi- 
cal changes, namely, monarchy, aristocracy, democracy, 
which changes again into monarchy, to a system, 
founds already the necessity of these changes upon 
the degeneracy consequent to the abuse of public 
power in each form of government. Lib. VI, c. 3 seq. 
Why is this the case 1 For the following reasons : 

1. Republicans complain of the abuse of power prac- 
tised by monarchs, their ministers, lords, commanders ; 
and yet each complainant carries within himself the 
germ of a despot, and abuses power proportionately 
within his sphere as much as the others in theirs. The 
monarchs are men of the same organisation with our- 
selves. Each party that is out, complains of abuse of 
power in that which is in. Are then all these com- 
plaints mere declamation ? They are not. If so, the 
abuse of power must be founded on some natural prin- 
ciple within us, and its origin need not be bad. It 
must be bad on account of insufficient restraint. Let 
us trace, then, the origin of this phenomenon. 

The love of power is not necessarily bad in its origin. 
It is closely connected with what I should like to call 
the desire or urgency of action, an original principle of 
essential importance. Where power, energy or any 
faculty for action and activity (dvvauio) has been given, 
there exists likewise an intense desire to exercise, 
practise, apply it. It is its very nature, and without it 
the world would be at a stand. Whatever we may 



312 The State. [book ii. 

undertake, originally by way of interest, the love of 
activity, the desire to leave some memorial of one's self, 
to produce and effect something, soon supersedes it. 
Does the merchant carry on his business in order to ob- 
tain a certain sum and then to stop ? Or does he con- 
tinue his operations even when, whatever the increase 
of his fortune may be, he cannot expect to live thereby 
more comfortably, give a better education to his children, 
or a surer prospect of independence to his wife, should 
he leave her a widow ? It is not ambition alone that may 
prompt him. There are many rich merchants, neither 
ambitious nor avaricious, who yet remain in business, 
and the community praises them for continuing it. 
Why do nearly all men love farming in the evening of 
their lives, when they are excluded from the busier 
spheres of life ? Nearly all ' retired men,' merchants, 
lawyers, politicians, princes love farming. Because in 
farming, though it is calm in its nature and therefore 
suitable to their situation, they still produce, act per- 
ceptibly to their own eyes, and they prove to them- 
selves, by that which surrounds them, that they are still 
acting beings. Does the orator, who feels and sees 
that he wields power by his word of mouth, merely 
speak for the sake of usefulness, or does that peculiar 
delight which a sound and energetic speaker neces- 
sarily derives from the consciousness that he exercises 
a mighty power over his hearers, strongly commingle 
with it ? Did Fulton never think of anything else but 
of benefiting his fellow-creatures, or was he strongly pro- 
pelled by the pressing desire for activity and the appli- 
cation of that power which nature had given him, and 
the delight which the soul always feels in the activity 
of its powers, capacities, talents, whatever name they 



sec. lxxxil] Urgency of Action. 313 

may have. What prompts an Ehrenberg to study the 
structure and vital organisation of insects in the burn- 
ing clime of Egypt ? Is it utility ? What impels every 
votary of science to pursue his toilsome paths? Is 
it interest ? Is it utility alone, or chiefly ; or is it the 
delight which the human mind feels in the conscious- 
ness of activity? Omnis enim scientia et admiratio 
(quae est semen sciential) per se jucunda est, says the, 
philosophically, great Bacon (De Augment. Scientiarum, 
Lib. I). And what is this admiratio but the delight of 
intense activity and consciousness of the power, and 
penetrating or combining action of our mind ? What 
prompts the true poet ? Was the first idea of Shaks- 
peare to delight his fellow men, or was it the yearning 
of his august genius to act, to manifest — to exteriorise 
itself, without which, genius is a burning fever ? What 
leads the painter, the sculptor to produce? Was 
Columbus induced to sail into unknown seas only by 
the desire of obtaining means to drive the Saracens 
from Palestine, as he himself believed, or did he wish 
to obtain these means, because his exalted mind urged 
him necessarily to act ? The nobler the mind, the more 
endowed the soul, the more intense, also, the thirst, 
the more pressing the anxiety to act, to produce, to 
exert our powers — to imprint our mind on the world 
without. It is indifferent what name we give ; our 
language has no term which expresses with one word 
the Greek dvvao&ai, noiuv, the German schaffen and 
wirken ; but what I mean to convey is what these words 
express in their respective languages. 

The love of power, therefore, is intimately connected 
with a principle in our soul ; by which man is stamped 
more as the image of his creator than by any other. 

vol. i. 40 



314 The State. [book ii. 

The love of power is a higher degree of the love of 
activity, which is found everywhere in men. All ab- 
sence of activity pains us. We find it in all spheres, 
from the common cutting in wood or writing in sand to 
the grandest self-sacrifices in the scholar, who, like 
Leibnitz, knows he will die early if he perseveres in his 
studies, but still prefers a short life of intense thought 
to a long one of repose. This love of activity is also 
closely connected with ambition, on which see the 
proper chapter. 

LXXXIII. 2. It is likewise the character of power, 
physical, mental, political and moral, that it goes on 
increasing, if not counteracted. Indeed, it is the essen- 
tial attribute of power that unchecked it will go on in- 
creasing. 

3. The delight in the exercise of power combined 
with the frailty of man, produces this effect, that few 
who have power, are willing to give it up. Whether in 
the people or the monarch, power is a bewitching 
thing. There have been monarchs, indeed, who have 
abdicated, as Charles V, emperor of Germany, and 
Diocletian of Rome, but as long as they had power, did 
they not remove everything in its way 1 I do not say 
that there may not be inducements still more urgent to 
give it up. Others, as Otho of Germany and the elec- 
tor of Saxony, declined the German crown. But there 
is at times a great difference between a crown and 
power. 

When Holland was engaged in that glorious struggle 
with Spain, in which thousands of deeds were per- 
formed by men and women, which are hardly equalled 
by the Greeks in the Persian wars, when the whole 



sec. lxxxiil] Abuse of Power. 315 

people were animated by inspiring enthusiasm, when 
William of Orange was at the height of his popularity, 
when the inhabitants of the country as well as the cities 
had to contribute all they could spare to defray the 
exhausting expenses of the war, even then that great 
man could not induce the cities of Holland, in 1573, to 
admit among their large number of representatives, at 
least three from the country, though the farmers of 
northern Holland alone bore two thirds of the public 
charges. They had not a single member in the states. 

How long did the English parliament resist all, the 
fairest measures of reform, even though Pitt advo- 
cated them. The Spanish cortes in 1812 would allow 
Mexico no representation ; Portugal behaved similarly 
towards Brazil. How many acts of crying injustice 
are recorded of Athens against those who depended 
upon her as allies. As soon as the various religious 
sects after the reformation had obtained what they 
wanted, nearly all of them denied the same to others. 
In short, whoever gets in, likes to lock the door be- 
hind him. 

4. It is a psychological truth, that all power, however 
lawful, being resisted, the first feeling in those entrusted 
with it, is not that of regret at this resistance, on ac- 
count of the object they had in view, but of offence at 
the opposition itself. This again is not peculiar to one 
set of men or class of society, but without exception 
true of all. Monarchic power is not more offended at 
resistance than democratic or parental power. 

Many a father, who complains of public function- 
aries on account of their love of power, forgets to 
ask himself at what he feels offended, when his child 
is disobedient ; because it disobeys a wise rule he has 



316 The State. [book ii. 

given ? or because it is disobedient and therefore acts 
wrong? or because it has disobeyed what the father 
had ordained ? The severity of all early penal laws 
arose from this source. The idea, the feeling was, 
' you have dared to disobey my power, you have rebelled 
against my authority,' not 'you have offended against 
society, acted wrong, because my authority is for the 
common good.' 

This is likewise the case when we are justly oppos- 
ed ; for whatever may be the ground of opposition to us, 
and though we may have a pretty distinct perception 
of the right of the opposer, the first feeling is the de- 
sire of overcoming the opposition. Few men indeed 
are ever opposed without at the first moment having 
the feeling of being wronged, and this extends even 
to the most atrocious criminal. And as the individual, 
so the body. Whoever wields the public power, feels 
irritated by opposition, be it ever so peaceful or loyal. 
Power therefore would overcome everything in its way, 
if not modified, or, which is the best, if not gene- 
rated in a manner which insures the least possible 
danger. This jealousy of opposition is frequently in- 
creased by a consciousness of greater weakness than 
the possessor of power wishes to be known, or by a 
suspicion that new or delegated power may not be 
acknowledged to the full. Alva decreed, July 31, 1571, 
after much debate and opposition in his own council, 
a most hateful law, and farther declared that the honor 
of the king depended upon him, and that every one 
who opposed him was a fool or a traitor. (Raumer, 
Letters, &c. I, 179; Thuanus L., 20). The corres- 
pondence of Strafford and Laud exhibits the same 
principles. 



sec. lxxxiii.] Abuse of Power. 317 

5. Man judges first according to his perceptions, 
and it requires great skill and much honesty, to view 
matters also in the light of others. (See the pre- 
vious section and note). If I feel oppressively warm, I 
say the weather is warm, and believe all must feel 
oppressed, until I have learned that my body may be 
in a state in which a comparatively low temperature 
may produce the sensation of a very high one. Those 
an power can but with difficulty see things from above, 
as those not in power see them from below. It is 
therefore the history of all governments, all revolutions, 
that those in power, from whatever part of the people 
they may have come, judge by their own view as it 
appears from their seats, as soon as fairly seated in 
them (1). 

6. Power imposes ; power receives everywhere re- 
spect by its own character. However illegally acquir- 
ed, the great action of power obtains homage. The 
success of usurpers is in part founded upon this fact ; 
the people revere power ; so that usurpation itself 
becomes a new acquisition to farther usurpation. It is 
the energy, which manifests itself and the capacity of 
action, thus proved, which overwhelms the beholder. 
This is of peculiar importance respecting the limitation 
of the executive, the depository of this vast acting and 
imposing power, and the independence of the judiciary, 
which rarely has an opportunity to act brilliantly like the 
other branches. 

7. Even after careful limitations have been estab- 
lished, it will always be possible for those who have 
power to overstep them and to find aids and abet- 
tors. Hardly had parliament abolished the most ruin- 
ous monopolies, and declared a principle, which may 



318 The State, [book ii. 

be considered as the germ of the petition of right, in 
1623, when James I sold new monopolies and levied 
anew arbitrary taxes on commerce, because, as he as- 
serted, the constitution gave him the right to make com- 
mercial treaties. Hardly had the petition of right been 
obtained, in June, 1628, when , the commons had to 
apply to Charles I for its protection and maintenance. 
Insolently but true enough, says Heylin, having men- 
tioned this fact in his Life of Laud, page 1 98 : " So 
hard a thing is it to find a cord so strong as to bind 
the prerogative, when kings have either power or will 
to make use thereof." See also Hermeneutics. 
the truth, that no cord would bind Charles, except one). 
Reason then enough to limit, retard and prevent 
power from luxuriant growth. 

(1) There is a scene depicted in chap. 10 of Mr. Bulwer's 
Rienzi, so expressive of what happens every day and everywhere, 
through all spheres of human life, that I feel tempted to quote 
it. The reader will recollect that a painting was exhibited for the 
purpose of testing and exciting the Roman people : 

4 " Know you not," at length said Pandulfo, " the easy and pal- 
pable meaning of this design ? Behold how the painter has pre- 
sented to you a vast and stormy sea — mark how it waves." 

" Speak louder — louder ! " shouted the impatient crowd. 

" Hush ! " cried those in the immediate vicinity of Pandulfo, 
" the worthy Signor is perfectly audible ! " ' 



(319) 



CHAPTER VIII. 

Legitimacy of Governments. — Governments de jure, de facto. — Divine 
Right. — Legitimacy of Governments with Reference to International 
Intercourse. — Can the Legitimacy of Government be ascertained by 
its Origin ?— Filmer, Locke, Rousseau, Haller.— The Origin of all 
States essentially the same ; yet Infinity of Circumstances, which in- 
fluence and modify its Development. — Ancient View on the Origin of 
Governments. Aristotle, Polybius.— Various Theories. — Social Con- 
tract. — Various Pacta. — Hobbes, his Error. — Theocratic Theory. 

LXXXIV. Before the subject of limitation, or, as 
more fitly it might be called, of moderation of power, be 
treated, it will be necessary to consider some others. 
The first is the legitimacy of governments. What is a 
legitimate government, for which we have claimed power? 
What are governments de jure and what de facto ? 

If nations or states had never been considered the 
descendible property of the ruler and his family, and the 
ruler, therefore, something above or without the state, 
and if people had not been dazzled by the supreme 
power, mistaking it for the government, and its change 
for a radical change of the state, while, nevertheless, 
such changes may take place with very little essential 
change in the great bulk of state institutions, as has 
been said before — the dispute about legitimate govern- 
ments would not have assumed the character, which it 
actually has, in spite of all facts which history furnishes. 
After having settled the true meaning of state, sove- 
reignty, government, public power and supreme power, 



320 The State. [book ii. 

it is easier, likewise, to arrive at a clearer notion of legiti- 
mate governments. 

Generally speaking, that government is legitimate, 
which exists according to the fundamental laws and 
usages of the state, i. e. the society ; or if these organic 
laws have been changed, by the existing government, if 
the people may be considered as having fairly acqui- 
esced in it. If the people composing the state are 
really satisfied, it is perfectly clear, that no one else can 
doubt its legitimacy, for, trite as the truth is, it is still of 
fundamental importance, that the government is simply 
and solely for the benefit of the society. But frequently 
the people are kept in such a state, that it is impossible 
to ascertain whether the people can be considered as 
acquiescing in it, even if we put the most extensive in- 
terpretation upon this w r ord, or whether they will break 
forth the moment after the demise of the ruler, and de- 
stroy his statues, execrating his memory : 

Descendunt statuse, restemque sequuntur 

Ardet adoratum populo caput, et crepat ingens 

Sejanus. Juven. x. 60 seq. 

a post mortem censure repeated by the Romans against 
the pontiffs, for instance, when pope Paul IV (Caraffa) 
died, in 1529, and the people dragged the head with 
the tiara of his statue, through the mire, of which oc- 
currence Morenigo gives an account (Ranke, ut sup. p. 
306). Suppose those who perform these acts are, as in 
some cases, e. g. under the Roman emperors, they must 
be considered, the correct exponents of public opinion, 
all we can say is that the government, the agent of the 
state, may have committed many illegal acts, as agents 
of any sort may at times do. 



sec. lxxxiv.] Governments de Jure, de Facto. 321 

A government may grievously oppress the people for 
a series of years, and every one who could produce a 
favorable change might be a public benefactor. So 
long, however, as the government does exist, so long 
as the people prefer the oppression to the danger of a 
change, they must follow the oppressive government. 
A government fairly established, which includes acqui- 
escence of the people, must be considered as legal, 
which, however, does not exclude the right or expe- 
diency of changing it, inherent in the state or society. 

The dispute about the legitimacy of governments is 
unprofitable, and it is far better to inquire into what are 
wise or ruinous, sound or rotten, just or unjust gov- 
ernments. That peculiar theory of legitimacy, as main- 
tained by the continental members of the congress of 
Vienna, is opposed to reason, history, and the course of 
policy which the proclaimers of that theory have been 
induced to adopt themselves. Louis Philippe is ac- 
knowledged, and his son intermarried with a reigning 
family. Napoleon was acknowledged by all powers, 
and received the hand of a daughter of an old imperial 
house. Talleyrand must be considered as the first who 
distinctly pronounced, at that congress, this remarkable 
theory, which at most can only be adopted even by the 
devoutest legitimists, as a rule for present action, not 
as a philosophical theory or practical principle, for it 
would be difficult to say even what legitimacy is, except 
it be maintained, that, to stop confusion, &,c, we agree 
to consider legitimate all European rulers that now exist, 
and those who shall descend from them by legitimate 
intermarriage with ruling families. This however, would 
amount to nothing more than an expediency, about 
which people may have different opinions ; for the ques- 

vol. i. 41 



322 The State. [book ii. 

tion, When does the ruler become legitimate ? is not 
settled. Talleyrand had nothing else to bring forth in 
favor of the Bourbons, when Napoleon had returned from 
Elba, and it had become clear to many members of the 
congress, that the Bourbons were not the men of the 
French nation, and Austria inclined to readmit the empe- 
ror on the throne. The principle was effective ; it saved 
the Bourbons. The English, of course, have never ac- 
knowledged this principle, because their constitutional 
law is founded upon the distinct acknowledgment of the 
nation, that calls rulers to govern according to certain 
rules, principles, and fundamental laws laid down by 
the people. But even according to the fanciful theory 
of the legitimists themselves, who is the legitimate ruler, 
at present (1838) in Spain ? 

LXXXV. All governments begin as, so-called, gov- 
ernments de facto, if the people do not actually and 
formally establish it. This is but rarely the case, and 
can be but rarely so, according to the political civili- 
sation of mankind. By this, I do not mean, that fact 
makes right, though fact has generally preceded right. 
The necessity of man's living in the state is so absolute, 
that whatever changes may take place, a legal relation 
will soon develop itself out of what violence, fraud, or 
wisdom and devotedness may have founded. The 
origin is not the thing. The first sounds, from which 
the noblest idioms arose, may have been utterances not 
much differing from those of animals, yet the subtile 
organisation of the Greek idiom is something very dif- 
ferent from a brutish means of communication. Society 
wants jural relations ; it cannot exist without them, and 
it cannot, therefore, continually recur to its first ele- 



sec. lxxxv.] Governments de Jure, de Facto. 323 

ments, but must transform the given circumstances 
into jural relations. It shows the naturalness and en- 
ergy of the state. So must the people live and want 
bread. If some one conquers the land, and violently 
changes the owners of the soil, does not the same natu- 
ral necessity of using the produce of that soil exist, and 
is it not lawful to buy the grain of the new possessor ? 
The urgent want of the state, the indispensable neces- 
sity of living within a state, is superior to all claims which 
may be set up as to the possession of power, just as the 
absolute want of nourishment is superior to any con- 
sideration of the title by which the land is held which 
produces it. 

If certain individuals had any distinct rights and claims 
of their own, derived from somewhere lesides the neces- 
sity of existence in the society over whom they claim 
the right of ruling, then we might speak with propriety 
of legitimate monarchs in contradistinction to uhanges 
of the government effected or fairly acquiesced in by 
the people. According to our theory, given in previous 
chapters, this is impossible. Was Louis XVIII, when 
an exile in England, the legitimate monarch of France, 
and not Napoleon ? He certainly was not the monarch 
of France, and therefore could not be the legitimate. 
He is a fool, says Sophocles, (Edipus 587, somewhat 
strongly, who calls himself a king without power. So 
soon as we give up the idea of rights personally and 
absolutely inherent in the monarch, and not dependent 
upon the laws of the land, the difficulty vanishes. This 
is not mere theory, but in spite of all pretensions to the 
contrary, the people have always been obliged to ac- 
knowledge by facts, that the state does not travel with 
the prince, but remains with society, with its everlasting 



324 The State. [book ii. 

legality and legitimacy, though a usurper may seize upon 
the supreme power, and commit a number of illegal acts. 
We have seen already that Louis XVIII could not help 
acknowledging the legal state of things which had grown 
up during his absence. It was not Louis XVIII who 
had succeeded Louis XVII, who never reigned, that 
was received by France in 1814 ; he was a new ruler, 
really and truly succeeding Napoleon. Indeed, the 
idea that the monarch carries away with him the legality 
of the state, is no more preposterous than it was in the 
emperor Frederic III, to count his amputated foot among 
the avulsa imperii : ' now a leg has been cut off from 
the emperor and holy empire.' (Griinbeck, 41). When 
the elector of Hesse returned in 1813 to his country, 
he declared the king of Westphalia, having been a 
usurper, to have possessed no right of selling the domains, 
and therefore took possession of them without any res- 
titution of the sums for which they had been purchased. 
Prussia acknowledged the sales which the same king- 
dom of Westphalia had made of her domains. The 
Germanic diet decided against the elector and for the 
purchasers, and when that prince for years declined to 
yield to the diet, and all the endeavors, even of Austria, 
were in vain, the diet ordered the troops of the neigh- 
boring members of the confederacy to make the elector 
comply with its decision. 

LXXXVI. The English go still farther. "A king 
de facto and not de jure, or, in other words, a usurper 
of the crown is a king within the meaning of the 
statute which defines treason (25 Edw. Ill, c. 2), so 
that treasons committed against Henry VI were pun- 
ished under Edward IV, though all the line of Lancas- 



sec. lxxxvi.] Kings de Facto. 325 

ter had been previously declared usurpers by act of 
parliament. On the other hand, the most rightful heir 
of the crown, or king de jure and not de facto, who 
hath never had plenary possession of the throne, as 
was the case of the house of York during the three 
reigns of the line of Lancaster, is not a king within this 
statute against whom treason can be committed." 
This passage and its continuation (taken from 4 Black - 
stone, 76 & seq. ; see also Hallam, Const. History 
of England, vol. i. chap. 1) show in the clearest pos- 
sible light that, according to English views, the state 
and monarch are totally different, and that treason is 
not so peculiar a crime on account of inherent qualities 
in the royal person, but simply because the king is 
seated on the throne on account of the safety of the 
state or the benefit of society. I would refer, as to these 
momentous points, to Hallam's Const. History in general. 
Protection, the main object of the state, requires, as we 
have seen, power ; but governments sometimes lose for 
some reason or other, by their own fault or not, all 
necessary power. Is then a powerless government 
still a legal government ? that is, is a government which 
cannot any longer perform that for which it exists, still 
legal? If so, then the people exist for the govern- 
ment, not the government for the people. St. Zachary, 
the pope, sent word to Pepin, who had demanded an 
answer, ' that he who had the power had better possess 
also the title of king.' That I do not strive to establish 
the theory of mere power, as it rules in Asia, must 
appear from all that has been said, and will appear still 
more from the sequel. 

And let me add, how has mankind at large decided 
the matter? Why is there universally made so broad 



326 The State. [book ii. 

a distinction between treason against the government 
and any other crime? Let a fugitive, convicted of 
treason against his government at home, go to any 
other country, is he treated as a criminal, received as a 
thief would be ? But let the fugitive have committed 
treason against his country, betrayed it, and will he 
still be received as a man with whose act society has 
nothing to do ? In the British Peerage it is mentioned 
of the ancestors of some peers, that they were executed 
for treason. Would it be mentioned if they had been 
beheaded for an act of treason against their country ? 
The effect upon us when w r e learn that such or such 
a lord conspired against the king, is very different from 
that produced by the treachery of some ministers of 
Charles II, or the common murder committed by earl 
Ferrers. Is this universal difference not founded upon 
some true principle ? Surely it is. 

LXXXVII. Louisiana, bought in 1803 by the United 
States from the French, was, perhaps, illegally acquired ; 
for, besides the great probability that the inhabitants of 
Louisiana territory were averse to the purchase and 
called upon the Americans to act up to their principle 
of popular liberty, congress had a very questionable 
constitutional right, if any, to spend fifteen millions 
of dollars for the purchase of foreign territory. But 
there are reasons and circumstances which carry along 
states and nations. To be securely and truly master of 
the western country it was necessary for the United 
States to possess the mouth of the Mississippi; and 
would now any one insist upon the members from 
Louisiana being excluded, because Louisiana was ac- 
quired unconstitutionally? With how many frauds 



sec. lxxxvii.] Governments de Jure, de Facto. 327 

and crimes, has that country we now call France, 
partly been brought together; yet she forms at pre- 
sent a state with all legal requisites. Some call this 
the right of conquest. First, fraud is not conquest, 
and secondly, conquest and right are entirely different 
things, for the very idea of conquest is that, I acquire 
something by force and not by right. The fact is 
simply this : mankind rise gradually out of the state of 
force into that of reflection, in politics as in any other 
branch. But whatever these many different conditions 
may be, which affect the rise of various states, they 
could not rise and develop legal relations even out of 
the merest relations of violence, if there did not exist 
the necessity of the state, i. e. of a jural society for men. 
The question of legitimate governments resolves itself 
into two: who shall be acknowledged by foreign 
powers as the legitimate ruler or rulers, and which is 
the legitimate government at home. The first ques- 
tion, properly belonging to international law, has in 
practice always been decided according to fact; that 
government, which is fairly established, is acknow- 
ledged, except it has been the interest of the for- 
eign state not to do so. A sovereign nation is, be- 
cause sovereign, free and independent, which involves 
that it has a right to establish any government it 
pleases. This does not exclude the necessity under 
which some states may be, of interfering with the 
affairs of another; for whatever the theory may be, 
practically it is true that states are sometimes so 
closely connected and interlinked by various interests, 
that they essentially affect each other, however incon- 
venient it may be, or clash with honestly professed 



328 The State. [book ii. 

principles. Self-preservation alone forces at times a 
state to interfere with the affairs of another. 

The second question is much simpler, if we recollect 
what has been said of the state, and that absolute or blind 
obedience to whatever authority is a moral incongruity. 
See on Obedience to Laws. If, however, the citizen 
must decide in a time of civil war, as at present in 
Spain, he must make up his mind solely according to 
the question : which of the contending parties promises 
the comparatively best government according to the prin- 
ciples on which it stands as a party, or on which it has 
set out in the contest, and which are, according to the 
natural course of things, most probably its inherent 
principles— to which it will owe its existence, not its 
proclaimed principles, or professions. For, be it re- 
peated, no government, no dynasty can possibly have 
any claims of their own, equivalent or opposed to those 
of the nation. If one of the contending parties is the 
government, according to the established laws, and yet 
the other party would be the eligible one according to the 
principle laid down, we must decide which will be for 
the more essential welfare of the state, adhering to the 
established laws, or changing them by the victory of 
the other party; for no laws are immutable. Surely, 
it would not have been wise or good to fight for the 
Merovingians against the Carlovingians. (See Political 
and Legal Hermeneutics). In the latter case the 
change may be partially or wholly a revolution. 

LXXXVIII. When the idea of the state became 
gradually more clearly developed, as an institution with 
a character distinctly of its own, and more and more 
separated from the ideas of force as well as that of the 



sec. lxxxviii.] Its Origin. 329 

family union ; when the state, in the progress of the 
ideas of justice, began to be separated from the dross 
of foreign matter, and men endeavored to sift that 
which is essential to the institution of the state, from 
that which is accidental and unessential, it was but 
natural that various attempts should be made which 
were partially or wholly unsuccessful. It has happened 
thus with most institutions. Mankind required thou- 
sands of years before so simple an institution as that 
of the judiciary, or even that of penal jurisdiction could 
be clearly developed and separated from the entangling 
notions, first of private vengeance, and afterwards of 
public vengeance. One of the erroneous notions of the 
state, yet easily accounted for in the course of civilisa- 
tion, was that we should arrive at the essential charac- 
ter of the state by investigating its origin, a misconcep- 
tion to which the most opposite parties sedulously ad- 
hered. Filmer and Locke, Hobbes, Rousseau and 
Louis von Haller (1) have all in their turn believed it 
possible to ascertain the precise character of the state 
by this mode of inquiry, and every one of them has, 
as it now appears to us, unavoidably been obliged to 
recur to the strangest fictions. But when Euler endea- 
vored to reduce the principles of music to mathematical 
laws, was he told that it was folly thus to ascertain the 
character of this soothing art, because the first people 
that beat the cymbal or the drum knew nothing of 
mathematics ? Or is it wrong to say that music kindles 
the feeling of devotion, because the first conch that was 
blown may have served to animate people to contest 
and slaughter ? Or is it wrong to treat of music sepa- 
rately, and acknowledge it as an art by itself, because 
music began and rose in combination with dance and 
vol. i. 42 



330 The State. [book ii. 

poetry ? Is music for ever destined to be inseparably 
united with dancing, because the first notions of rhythm, 
essential to music, manifested themselves in the dance 1 
Are the vine-dressers not allowed to give utterance to 
their happy feelings at the conclusion of a rich vintage, 
because all dances were, perhaps, originally of a reli- 
gious or warlike character? Do we learn anything 
with regard to the true character of the infinitesimal 
calculus, or the celestial mechanics from the fact that 
all counting began with five fingers, so that it is believ- 
ed that to five (to count by five) was the original ex- 
pression for counting ? (2) Do we learn the true cha- 
racter of a healthy, comfortable and safe house for a 
civilised man, from the first tents, which consisted per- 
haps of nothing more than the skin which served also 
as a cloak 1 We may learn indeed that man is left 
physically so unprotected, that, be it against burning 
sun or piercing cold, ray or rain, he is always found 
with some shelter or other, and that to him therefore, 
naked but endowed with reason as he is, a shelter, a 
hut, a house, is a consequence as natural to his organi- 
sation as the well lined burrow of the northern animals, 
or indeed their fur itself. 

(1) See the article on him in the Encyclopaedia Americana. 

(2) Homer Odyss. IV. 412. 

LXXXIX. The state originated always in one and 
the same way ; that is, by the conception of the idea of 
the just, or by the development of the jural relations 
among men. These relations, however, developed 
themselves, and continue to develop themselves out of 
an infinity of given circumstances and conditions, pro- 



sec. lxxxix.] Its different Chigin. 331 

duced by family adhesion, force, fraud, vengeance, 
pride, deliberate debate, slavery, kindness and love of 
liberty, conditions growing out of the life of mountaineers, 
or herdsmen in the steppes, in well- wooded plains, coun- 
tries with navigable rivers, inlets, or barren wastes, isl- 
ands or diked shores, or the summits of mountains (1), 
of hunters, agriculturists, mariners, merchants, or war- 
riors, men that had, or men that desired property, of 
pirates or protectors of the weak (2), out of pure reli- 
gion, or persecution (3). Hippocrates, Aristotle, Mon- 
tesquieu mention the influence which soil and climate 
exercise upon the social relations, and the state— 
they influence, but I do not say that they deter- 
mine the latter (4). The reason is very clear. All the 
various relations, which may subsist between men, make 
up that which unites them into society, and leads to 
jural relations, or if protected by pronounced laws, legal 
relations ; the sum total of which, is the state with its 
government. A state is always something gradually 
grown, and of progressive development, for a man can 
no more step out of his time than he can help being 
the offspring of his progenitor. He can and will im- 
prove and develop, or change and rebuild, but in no 
instance can he possibly begin anew. And were he to 
break down everything, or to build from scattered frag- 
ments, still the materials he has are the fragments of 
broken institutions, and his mind is necessarily formed 
and fashioned by his time. Nee temporis unius nee 
hominis esse constitutionem reipublicae, are the words of 
Cato. Cicero de Republ. ii. 21. 

As to the larger states, they have, in many instances, 
actually originated in a contract. When families in- 
crease into tribes, and tribes again subdivide them- 



332 The State. [book ii. 

selves, continued war between them, chiefly on account 
of revenge for some injury, especially homicide, is often 
the consequence. To avenge the death of a kins- 
man, or fellow member of the tribe, is considered by all 
early nations as a sacred duty. As, however, the 
various tribes of common origin, cultivate the same reli- 
gion, the celebration of common holy rites leads these 
distracted parts at certain seasons together. In order 
to celebrate these religious feasts in peace, it is neces- 
sary to suspend hostilities ; this leads to agreements of 
peace for a limited period, and these become, in the 
course of time, the foundations of national compacts, 
Finally, many of these confederacies grow into more 
consolidated states. Yet these compacts are not the 
first origins of the state ; the state, that is, political so- 
ciety, exists already. The history of Sweden furnishes 
a striking example of this process of political generation. 

(1) See Genera] Introduction to Heeren's Sketch of the Polit- 
ical History of Ancient Greece, 2d ed. of the translation, Oxford, 
1834, for the decided influence which the physical state of Eu- 
rope, climate as well as surface, had on all her domestic and 
political institutions. — The whole superintendence of the dikes 
in Holland came, in the natural course of things, to be managed 
by elective boards, and van Campen shows, that this circum- 
stance essentially contributed to the growth of republican notions, 
as the Alps led the Swiss mountaineers to theirs. Van Campen, 
History of the Netherlands, vol. ii. page 12 &, seq. (in German, in 
the History of the European States by Heeren &, Uckert). 

(2) The French Colony of St. Domingo on the one hand, 
and the Knights of St. John, (at Rhodes and Malta) on the other ; 
for the latter formed a real state to all intents and purposes, 
with sovereign power. 

(3) Many sovereign bishoprics and archbishoprics ; the state of 
the Jesuits in Paraguay, and the annexation of Grenada to Spain, 
or in fact Spain herself and so many Mahomedan states. 



sec. xc] Various Theories. 333 

(4) Dicta so true, have been enlarged and carried out too far 
by many. See abundant instances in Falconer, Remarks on the 
Influence of Climate, Situation, Nature of Country, &c, 1781. 

XC. The chief theories respecting the origin of the 
state, are those which start from a previous authority, 
from force, a religion (or priesthood), or contract. I 
take the latter first. Ancient and modern authors, in 
order to explain the right which a government has over 
the governed, have asserted, that the state was founded 
upon a contract of its members for mutual protection and 
assistance, for which each one is willing to give up what 
has been termed natural liberty, a state in which man 
was supposed to depend upon his own will alone. Some 
writers, and among them are scholars of great distinc- 
tion, believe not only in the theory of an implied or tacit 
contract, but that all political law (or state law) has 
grown out of the germ, to be found in the contract of a 
certain number of tribes (1). Aristotle says distinctly, 
in his Politics, iii. 14, that the regal power has been 
founded by the will of the people. Plato's view of the 
origin of the state, given at the beginning of the third 
book of his Republic, coincides with that of Aristotle. 
Polybius calls royalty (fiaoilzia) that government only, 
which has originated out of the free will of the people, 
and which subsists more by public opinion and acknow- 
ledgment, than by force and fear ; in the contrary case, 
he calls it monarchy. Polybius iv. 4, 2. vi. 5 seq. And 
well may be mentioned here again Herodotus (i. 96), 
where he gives an account of the origin of the monarchy 
of Deioces among the Medians, out of free choice of the 
people ; for whether the event actually occurred in this 
manner, or not, the passage sufficiently shows the view 
of the ancients (2). See book ii. sect. xxxi. n. 3. 



334 The State. [book ii. 

( 1 ) Political Law of Antiquity, by Charles D. Hulmann, Cologne, 
1820, p. 59. Compare also his Fundamental Constitution of 
Rome, Bonn, 1832, p. 22 & seq. Mr. Hulman is professor of his- 
tory in the university of Bonn. 

(2) I refer the reader to the very thorough work, Representa- 
tion of the Grecian Constitutions, by F. W. Tittman, Leipzig, 
1822, p. 80 & seq. Also to W. Wachmuth, Hellenic Archaeology 
from a Political Point of View, Halle, 1826, 4 vols. vol. i. pp. 92, 
and 100 — a work of vast research. 

That all the works of distinction on Greece and Rome, as those 
of Heeren, Muller, Gibbon, Niebuhr, also Guizot, &c, are impor- 
tant here, need not be mentioned. I have not cited Cicero De 
Republica, for, as is the case in nearly all the writings of this au- 
thor, he chiefly follows the Greeks, when he discusses philosophi- 
cal points. 

XCI. If we understand, by the theory of the political 
or civil contract, that view of the state, according to 
which it is a politically organised society of members, 
each of whom stands in a jural relation to every other 
member of the society, therefore, in this point of view, 
in a relation of equality, namely, the equality of justice, 
and if we farther mean to express by civil contract, that 
no jural relation, be it between the mightiest and the 
weakest, can possibly exist without a reciprocity of obli- 
gations (for the contrary destroys the idea of obligation, 
since obligation can only exist in moral beings, and all 
obligation being on one side would destroy the charac- 
ter of moral being with a moral value of his own), that 
the state is a society of common and mutual weal, guar- 
anteed by the law, which Seneca, De Legibus, L. 1, 
calls, communis reipublicae sponsio ; if we finally mean 
by civil contract, that those fundamental rules according 
to which some nations govern themselves, are binding 
upon both parties until changed by the state, i. e. society, 
with inherent sovereignty — then the theory of the civil 



sec. xcn.] State Contract. 335 

compact, or contract, is correct, and the only one which 
gives to the state its true, that is, jural character, and thus 
insures its lawful continuation. If, however, we imagine 
by civil contract an actual agreement made at some defi- 
nite period, between human beings, otherwise either 
running wild and harming one another, or possessed of 
well developed reflection, who enter, after mature con- 
sideration, into so solemn a covenant (the one supposed 
by Hobbes, the other by Locke), and that a contract of 
this sort with a particular government or dynasty, be 
binding for ever ; nay, if we theorise this idea so far as 
to adopt three different compacts — the pactum unionis, 
according to which the individuals determine by a ma- 
jority of votes the end and object of the union or soci- 
ety ; the pactum ordinationis, according to which the 
ruler and the fundamental laws are designated ; and the 
pactum subjectionis, by which the contracting parties 
subject themselves and all future members to this ruler 
or government, as Puffendorf represented it — then the 
idea of the contract is radically wrong, and leads to 
dangerous conclusions, favoring tyranny or licentiousness. 

XCII. First of all we have to imagine man in a sup- 
posed state of nature, in which we never find him, nor 
is it possible to say which of the two early stages of 
human society, is the state of nature, when as Hobbes 
says (1) every one wars with every one, for which we 
have, as he says, to imagine a number of men just 
created. But politics are not an imaginative science, 
and we can find nowhere such a number of men, Or 
we must imagine a society living in peace but obliged 
to protect themselves against others. Hobbes says that 
every man naturally distrusts the other, and among 



336 The State. [book ii. 

other things he points at our locks and keys as a proof 
of his position. But he forgets that our knowledge or 
suspicion of one thief existing in a community of 
twenty thousand, would induce all the honest mem- 
bers to make use of locks. On the contrary, man trusts 
a thousand times before he distrusts once. Our whole 
life and intercourse are essentially founded upon trust ; 
look around you, and you will find innumerable in- 
stances. Nor is this so, only because we live in a 
regulated society, and politically protected. Caille 
started from the Senegal and worked his way to Tim- 
buctoo and back to Fez through the desert, single- 
handed without protection. He undoubtedly knew 
that there was great danger in his undertaking, but on 
the other hand was not his perilous journey mainly and 
essentially undertaken upon the idea of trust in utter 
strangers, that had not been visited by Europeans 
before, and had not even a common color with him ? 
He trusted, because they were men and for no other 
possible reason, and considered all the chances of perish- 
ing by the bands of the Africans, however great the 
danger, still as exceptions. 

If a stranger tells you something, what do you in- 
cline to, to believe or disbelieve him ? You only dis- 
believe, if there are particular reasons which induce 
you to do so, if none, you believe, or incline to believe. 
Men like animals have to learn distrust; their nature 
is confiding (2). Hobbes, moreover, contradicts him- 
self, for does not every idea of a compact show that 
each one has confidence in a greater number than he 
distrusts? His very idea is founded on trust. He 
who has seen a body of troops which for some reason 
or other is seized with distrust in the officers and in 



sec. xcni.] Man, naturally confiding. 337 

one another, or which, composed of heterogeneous 
elements, has not yet arrived at mutual trust, knows 
how futile any attempt is to keep them together even 
by force. There is no imaginable force that can keep 
a body of men united, be it for whatever purpose, if 
they are not first morally united, be this upon habit, 
prejudice, or even for criminal purposes ; the union 
must be mental in its origin. 

(1) 'Seeing then to the offensiveness of man's nature one to 
another, there is added a right of everything, whereby one man 
invadeth with right, and another man with right resists, and men 
live thereby in perpetual diffidence, and study how to preoccupate 
each other ; the estate of men in this natural liberty, is the estate 
of war,' &c. Hobbes De Corpore Politico, part I, chap. I. 

The same great author says in his Leviathan, part I (of Man), 
chap. XIII : 

' Again, men have no pleasure in keeping company, where there 
is no power able to overawe them all.' Yet men will always con- 
gregate, even when public power has been relaxed. 

(2) Clapperton found the cranes in Africa without any fear. 
Lt. Paulding (Cruise of the U .S. Schooner Dolphin, New York, 
1831) caught the birds on the Marquesas Islands with his hand. 
Bougainville found, in 1765, foxes and hares on the Falkland 
Islands, tame. Turkeys and deer, though hunted by the Indians, 
were comparatively tame when the puritans landed in New Eng- 
land. The works of Cooke, Kotzebue, or any circumnavigator, 
state the same. So likewise many reports of the first Spaniards 
who went to South America. What is more, the animal learns to 
regulate its caution, according to the habitual danger. A hen 
flies from the boy, but only to a certain distance. Many animals 
in the forest flee from man with a gun, but show comparative con- 
fidence, if the latter be unarmed. 

XCIII. Secondly, it is thought by this contract to 
establish the reason why man shall obey the laws, why 
every member is bound to acknowledge public autho- 

vol. i. 43 



338 The State. [book ii. 

rity, even though he dislike it. No one can study the 
writers on natural and political law, without perceiving 
at once that, whether they were always aware of it or 
not, when they spoke of government, as I have said 
already, the idea of the monarch was present in their 
minds. Hence government appeared to them as some- 
thing separate from, opposed, in a degree, to the peo- 
ple, in short they did not conceive society as such, but 
people as the ruled part and government as the ruling, 
both materially separate and distinct. Hence the 
many incongruities in writers, whom we have neverthe- 
less to acknowledge as minds of great power and grasp, 
and hence, likewise, the totally opposite ends which 
they have arrived at by the same means. Hobbes, 
by his covenant, arrives at the most absolute monarchy, 
in which the ruler has power over life, death, and reli- 
gion — over everything ; and Locke arrives at a limited 
monarchy. He, indeed, made a great step toward the 
true understanding of the real source of power (which 
power Bodin, see chap. IX, had found already in the 
people, not to speak of the ancients) by acknowledging, 
at least, the family in that supposed state of nature, and 
making the covenant only between the heads of fami- 
lies, by which therefore he escapes the absolute sub- 
mission of Hobbes. See Locke's Two Treatises of 
Government. If I thus show in what previous writers 
have, as I believe, erred, I nevertheless acknow- 
ledge with gratitude their great merit, and believe, 
moreover, that political science could hardly have de- 
veloped itself without passing through these gradual 
stages. Hobbes, whatever erroneous consequences he 
may have derived from his supposed state of nature 
and consequent compact, yet made a great step, indeed, 



sec. xciv.] Hobbes. 339 

towards bringing home power to its true seat. He 
brought power, at least to a human origin, which was 
no mean service to rational politics. Without it, the 
state would not, even now, be acknowledged essentially 
a jural institution. 

XCIV. 'No law can be made, till they (men) have 
agreed upon the person that shall make it,' says Hobbes, 
in his Leviathan, part I, chap. XIII. But is the agree- 
ment to invest a man with so important a trust as that 
of making laws for others, no law itself? It is the 
most important law of all — the fundamental law. And 
whence do men derive the power to elect, in other 
words, to fix, by a majority of voices, upon a man that 
shall rule? Where is the right to bind the minority? 
Here is the point that can never be solved by the 
theory of the contract, taken in the sense as I treat of 
it here. Even there where the men assembled and 
joined, as in the case of the Rhode Island planters, 
previously mentioned, they never doubted for a moment 
that the majority have the right over the minority, which 
destroys, however, the idea of the contract, for a 
contract requires a voluntary agreeing in all parties, and 
the minority would not be voluntary parties. This, 
again, is a case in which a word has misled : c the 
people make a contract,' but the people are not yet an 
aggregate. Every one is still insulated for himself. 
Each one, therefore, must agree for himself. 

Where do the men derive the right to contract for 
women, children and servants? If in that so-called 
state of nature all are utterly free and unconnected 
with one another, whence above all the right to con- 
tract for those that do not yet live ? To contract for 



340 The State. [book ii. 

them after the laws of the land have once been estab- 
lished may be right, for private purposes, because it 
may be expedient in order to avoid certain evils, in 
short, it may be right to give the right of contracting 
for unborn generations, if the sovereign power inherent 
in society declares it to be right, but it involves an 
absurdity if this sovereign power itself is the object. 
For the object of the philosopher was to establish legality 
and the right of demanding obedience on the side of 
the authority by mutual consent, which, therefore, is 
the first foundation of the authority, and yet here some 
persons do establish an authority which shall have power 
without the consent of some. The assertion that the 
original contractors represent the unborn generations, is 
an unmeaning evasion, for that which is not cannot be 
represented. If we, nevertheless, use this phrase, it 
has significance only so far as a positive law gives 
meaning to it, but without it it has none. Moreover, 
the idea of representation in the first contractors is 
again a contradiction, because representation requires 
previous arrangement, legalisation. How could my fore- 
father contract away my absolute freedom ? To keep 
then the state in existence, it would be necessary to 
repeat this contract from time to time, say every twenty 
years. In the mean time no one that had been born 
after his father had consented to it, and before he per- 
sonally had consented to it himself, would be amenable 
to the laws. To be sure, according to the believers in 
a primordial state of nature, we should have the right 
to molest, torment or kill them like wild beasts. Per- 
haps it might be proposed that they should wear a 
distinguishing mark, a cap of cat skin, as the enslaved 
helots were forced to do by the Spartans. It would 



sec. xciv.] Untenableness of the Contract. 341 

be for the benefit of those natural men, to show that 
no constable had any right to seize them, and for the 
artificial men or citizens, that they might raise the hue 
and cry as soon as such a political non-juror showed 
himself. In what a state of things all society would be 
thrown every twenty years, when the contract must be 
renewed ! All property at an end, all institutions broken 
up, all lives at the disposal of every one, all law dis- 
solved, every one a perfect Adam in right and might, 
everything and every one belonging to every one — a 
state of savageness with all the horrors of a dense popula- 
tion and minds refined, stirred and excited by civilisa- 
tion, without the restraint and moderation of law, simul- 
taneously and correspondingly developed. And, after 
the contract should have been renewed, what hunting 
down and killing of the non -contractors. The new 
state must needs begin with offering a reward for the 
head of every non -conformist, as now we offer a pound 
for a wolf-skin or some shillings for a crow's head ; or, 
as of old, a price was offered for a dead Indian. For 
it is evident, we have no right whatever to judge by 
our laws, the proud non -contractor, who in the full con- 
sciousness of his natural lordship and absolute freedom, 
spurns the idea of becoming an abject contractor. As 
to relations with other nations, we should acknowledge 
piracy as the only one, for have they signed our bond, 
have we theirs 1 Can any state of physical and mental 
progressive development of our society or nation be 
imagined under these circumstances ? 

It is surprising that these necessary consequences of 
the theory of the contract, which would be precisely as 
I have represented them, have not shown before the 
untenableness of this theory. Indeed, it actually led a 



342 The State. [book u. 

great statesman to perceive, in a measure, its conse- 
quences, for he says, in one of his letters, that properly 
speaking the contract ought to be renewed from time 
to time. How long ought the binding period to last? 

I repeat, then, the state exists by necessity ; not this 
or that particular state, which has been modified by a 
thousand favorable or untoward conditions, geographi- 
cal, historical, social, religious or scientific ; but always 
does the state exist, however corrupt or pure. 

XCV. A few words on the other theories of the ori- 
gin of governments, mentioned above. Sir Robert Fil- 
mer, who died about 1688, wrote a work, Anarchy of a 
mixed Monarchy, in which he derives all authority from 
the fact, that Adam, the first monarch was likewise 
absolute master of his children ; hence the people are 
naturally, and from their births subject to their princes, 
when the monarch becomes to be separated from the 
natural father. Whitaker again started this theory, 
about fifty years ago, and, strange to say, not without 
attracting some attention. Let us associate the name 
of Filmer rather with the fact, that he wrote at so early 
a period against witch trials, than with this more than 
untenable theory. Men like Filmer saw that by the 
absolute contract it is impossible to gain a sure foun- 
dation for political authority, and therefore sought for 
a natural foundation of power, committing, however, in 
turn, the common mistake of confounding power, gov- 
ernment and state. 

Others explain the origin of the state on theocratic 
grounds. All government, according to them, descends 
from the priest, that is, the authority of God proclaimed 
by the priest, or, all political relations originate from 



sec. xcvi.] Theocratic Theory. 343 

religion, the primary and fundamental relation of all 
society. It is a view which, incredible as it may sound, 
has found, of late, again some prominent advocates. I 
have already answered this theory ; religion is not jus- 
tice, the church is not the state. The fact, that we find 
the character of the priest, father and ruler blended in 
the rudest stages of society, if we choose to call sacri- 
ficing for the family, distinct priesthood, and giving 
rules for the house, ruling, is no proof that the state 
originated on theocratic grounds. There can be no 
doubt but that those primitive rulers were likewise the 
butchers and cooks for their family, or little clan. The. 
kings of Homer slaughter, roast, and cook with great 
zeal. Is it on that account philosophical to say all 
monarchy and civil government is of a creopolarchic 
character ; that is, derived from butchery or cookery 1 

XCVI. Finally, some give as the origin of the state, 
force alone. They say, force makes right, which is 
about as true as that negative makes positive. 

Many states have been conquered, usurpers have 
established dynasties of flourishing kingdoms ; but be- 
cause they have done so it is not proved that they 
originated or constituted the state. This confusion of 
ideas, however, has been mentioned already. 

Charles Louis von Haller has acquired notoriety by 
his work, entitled, Restoration of Political Science, or 
Theory of the natural- social State opposed to the Chim- 
era of the artificial-civil State, 1820. The substance of 
his theory is this, that the government over men de- 
pends upon the will of God, and is known by natural, 
(that is, physical) superiority (power), excluding there- 
fore the jural principle. According to him, the prince 
is before the people, as the master is before the slave. 



(344) 



CHAPTER IX. 

View of the Origin and Character of the State in the Middle Ages. — 
Dante. — Thomas More. — Bodinus. — The Netherlands first proclaim 
broadly that Monarchs are for the Benefit of the People, and may be 
deposed.— The Development of the Idea of the Sovereignty of the 
People owing to the Jesuits. — William Allen. Persons. Bellarmin. 
— Jesuits defend Regicide under certain Circumstances. — Mariana. 
Suarez. — Luther. Calvin. — Bacon. — English Revolution, a great 
Period for liberal Ideas in Politics. — PufFendorf. — Leibnitz. — Montes- 
quieu. — Hume. — Quesnay. — Turgot and Malherbes. — Mably. — Adam 
Smith. Blackstone. Delolme. Bentham. Hallam. — Revolution of 
1830. 

XCVIL The views which the ancients took of the 
origin of the state, have been briefly mentioned, and I 
shall return to the subject. The state of things in the 
middle ages was such, that political law could not be 
expected to be much cultivated. Views derived from 
the old testament, combined with the overspreading sys- 
tem of the church, and the religious principle as one of 
the most active agents in all public life in those periods, 
very naturally stood in the way of free inquiry into the 
elements of political law. The theory, however, differed 
more from practice during the middle ages than proba- 
bly at any other period. On the one hand it was in- 
sisted upon, that, as it is said in Proverbs viii. 15, Per 
me reges regnant, perfect obedience is due to the mon- 
archs, so long as they are faithful to the orthodox church ; 
on the other hand, monarchs were nearly all the time 
contending with their vassals. 

Dante's De Monarchia can hardly be mentioned here. 



sec. xcvii.] Bodinus. 345 

Machiavelli touches upon many subjects relating to the 
state in his history of Florence, Discourses on the first 
Decade of Livy, and in his Prince. He was a man of 
most uncommon and penetrating mind (1) ; but we can- 
not enumerate him, with propriety, among those who 
have directly promoted public or political law. Chan- 
cellor sir Thomas More (Morus) attracted much atten- 
tion by his Utopia, in which many questions of the 
highest importance to the citizen are discussed in a 
spirit far in advance of his time. Thomas More recom- 
mended, as early as under Henry VIII, perfect freedom 
of conscience, which was a thing absolutely unknown 
then and for centuries afterwards. Joannes Bodinus or 
Bodin, a Frenchman, who was member of the diet, as- 
sembled at Blois in 1576, wrote, Six Limes de la Re- 
publique, also in Latin, a work of much merit (2), which, 
to this day will not be studied without great profit, 
though it is affected by that peculiar and deceiving 
reasoning from analogy and on similes, which continued 
to influence the minds even of very superior men long 
after this writer, and cannot be said to have vanished 
entirely even in our days, though the reform produced by 
Bacon has had a strong tendency to rend these tissues 
of false ratiocination (3). Thus Bodin's sixth book speaks 
of the distributive, commutative and harmonic justice, 
and shows that 'royal monarchy' is harmony, proceed- 
ing to speak of the octave, fifth, and third in the state. 
This disposition to reason by analogy, and desire of 
finding the system and order of one thing always re- 
flected in another, and fondness for logical symmetry — 
a desire, correct in its origin, namely, to find a harmony 
and correspondence in all things — strangely induced 
men to confound all departments, or, which amounts to 
vol. i. 44 



346 The State. [book ii. 

the same thing, prevented them from properly separat- 
ing them. 

The commission by which Columbus was appointed 
admiral of the Indies, and which contains the agreement 
between the monarch of Spain and himself regarding 
the expected profits, as recorded in the Codice Diplo- 
matico (page 47 & seq.) already mentioned, begins 
with a purely theological declaration and essay on the 
holy trinity, the virgin Mary, St. James, &c. It then 
treats of the order of things, the vicars of God (mon- 
archs), with a discussion on the different species of jus- 
tice, on three closely-printed pages, without any con- 
nexion or reference whatever to the main subject. 

(1) This powerful and grasping mind is, in my opinion, 
greatly misunderstood by a vast majority of all who know of his 
name. I may be excused, therefore, for referring to the article on 
him in the Encyclopaedia Americana, where I have indicated my 
opinion of this great man. 

(2) Les Six Livres de la Republique de J. Bodin Angeuin, 
Paris, 1580. (There is, in the Congress library at Washington, 
a copy of this date, which has belonged to Mr. Jefferson, with 
pencil marks by his hand). See Introduction generale a PHistoire 
du Droit, par M. Lerminier, Avocat a la Cour royale de Paris, 
1829, chap. v. 

(3) As an instance, may be mentioned the Monarchy of Man, 
by sir John Elliot, appended to his life by John Foster, in the 2d 
vol. of British Statesmen, in Lardner's Cabinet Cyclopaedia. Nor 
are Sydney's writings at all free from this analogic train of ideas. 
Astrology, with all its macrocosm and microcosm, had, of course, 
a most powerful influence. I repeat for the youthful and ardent 
student, that too much care cannot be taken against confounding 
illustration with argument, the explanation with the basis. Quite 
different from misleading and seducing analogy is the zealously 
tracing out the same principle in apparently or really different 
spheres. It is a delightful employment of man's mind. 



sec. xcviii.] Manifesto of the Dutch. 347 

XC VIII. " That mysterie, the prerogative of kings, 
which is a point so tender as it will hardly bear men- 
tion," as the noble Elliot wrote in the tower (page 134 
of the work mentioned in the last note), when imprison- 
ed as the devoted advocate of a pure cause, was, never- 
theless, frequently illucidated by the light of discerning 
minds, at an early period. Thus there are some power- 
ful sentences in Bracton. • Yet the principle, that mon- 
archs are for the benefit of the people, and may be 
deposed if palpably and perseveringly opposed to their 
interest, was for the first time distinctly proclaimed and 
boldly acted out, in modern times, on a broad scale, 
when the Netherlands declared themselves independent 
of the crown of Spain. 

The manifesto of the Utrecht Union, dated Hague, 
July 26, 1581, against the king of Spain, says, that a 
prince is placed by God over his subjects, to protect 
and watch over them, and that the subjects are not 
made for the benefit of the prince, to do slave service 
unto him, but the prince is made for the sake of the 
subjects, without whom he is no prince, to rule them 
fairly and paternally. If he neglect this, he must be 
considered not a ruler, but a tyrant, and in this case the 
subjects, and their representatives, the estates, have the 
right to place some one else for their protection, espe- 
cially after they have fruitlessly attempted to turn him 
from his tyrannical measures, and if, therefore, they have 
no other means of protecting their native liberty, for 
which they shall, according to the laws of nature, pledge 
their lives and all they possess (1). But the develop- 
ment of this just idea into a theory, was destined to 
come from a quarter, from which it might have least 
been expected, from the Jesuits, one of the fundamental 



348 The State. [book ii. 

principles of whose constitution was absolute obedience 
to the pope. Thus it was this very absolute obedience 
to the pope, and the absolute supremacy of the true 
church, that is, of the Roman catholic church, over all 
temporal government, which led them to the theory of 
the sovereignty of the people. 

The English monarch had been declared supreme 
head of the Anglican church. William Allen, a Jesuit, 
consequently declares in his writing : Ad Persecutores 
Anglos pro Christianis Responsio (1582), " Si reges deo 
et dei popuio fidem datam fregerint, vicissim populo non 
solum permittitur, sed etiam ab eo requiritur ut jubente 
Christi vicario, supremo nimirum populorum omnium 
pastore, ipse quoque fidem datam tali principi non ser- 
vet." Persons, or Parsons, another English Jesuit of the 
time, adheres to the same principle, for instance, in his 
Andreae Philopatri ad Elizabethan Reginas Edictum Res- 
ponsio (2). The distinguished Bellarmin adopted these 
views, and while he maintains, on the one hand, that the 
pope is supreme to all, to the council of the church and 
monarchs, whom, if religion require it, he may rightfully 
depose (see, for instance, his De Conciliorum Autoritate, 
c. 17, and De Romano Pontifice V, iii.), he distinctly 
lays down, on the other hand, that " Jus divinum nulli 
homini particulari dedit hanc potestatem : ergo dedit 
multitudini : igitur potestas totius est multitudinis." 
And Mariana, one of the most distinguished Jesuit wri- 
ters, says, " Neque respublica ita in principem jura po- 
testatis transtulit, ut non sibi majorem reservarit potes- 
tatem." And Mariana was a Spaniard too. So willing 
are people to acknowledge any theory, which is favor- 
able to the objects next in view — at that time the de- 
position of Elizabeth, and in France the dethronement 



sec. xcviii.] The Jesuits, 349 

of Henry III. The combination is as singular as that 
the Belgian catholics, who so long assisted the princes 
in their attempts to subdue the free Dutch, and were 
always for monarchy opposite to the republican Dutch, 
did lately profess the utmost liberal political views, in 
junction with the strictest Roman religious professions, far 
too ultra-roman for most other catholics, merely because 
opposed to the protestant Dutch. 

But the Jesuits went farther; they maintained the 
lawfulness of regicide, if a tyrant or perverse heretic has 
possession of the throne. Those catholics, who pro- 
fessed, that obedience is due to a lawful prince, though 
a heretic, were styled by them royalists and most se- 
verely attacked. See for instance Roswede, de Fide 
Haeret. servanda, Antwerp, 1610. The university of 
France reproached the Jesuits, in 1626, with having 
produced thirty authors who had preached disobedi- 
ence to the prince, if the pope orders it, and even regi- 
cide, because he is no longer king after excommunica- 
tion. Suarez, Defensio Fidei Catholicae, lib. b. c. 4, 
Col. 1614, says: Posse Regem privari regno, etiam 

ilium interficiendo Si papa regem deponat, ab illis 

poterit expelli vel interfici, quibus ipse id commiserit 

Nam rex ipse jam non est rex, &c.' Mariana, Heissius 
(Ad Aphorismos Doctrinae Jesuitar. Declarat. Apolog. 
Ingolstadt, 1609), Vasquez, Cotton, Molina, Keller, 
Lessius, Ribadeneyra, de las Salas and numerous 
others, too many to be mentioned here, are of the same 
opinion. 

It is a remarkable fact, that, when the three French 
estates were met in diet, in 1614, the third estate pro- 
posed a law according to which the king should be 
declared to possess his right of God, and that no one 



350 The State. [book ii. 

has a right to absolve his subjects of their allegiance, 
upon which every officer should take an oath, and that 
the clergy and after them the nobility opposed this pro- 
position, because, as cardinal du Perron said, subjects 
are free of their allegiance if the king becomes a here- 
tic, adopts the religion of Mahomet or the doctrine of 
Arius. And this was after Henry IV had been mur- 
dered by Ravaillac in 1610. It was precisely the same 
contest, which obliged the English to insert in their 
declaration of right the oath forswearing ' that damnable 
doctrine and position, that princes excommunicated or 
deposed by the pope, or any authority of the see of 
Rome, may be deprived or murdered by their subjects, 
or any other whatsoever, &,c.' 

Luther, born, bred, and living in a monarchy, hav- 
ing to contend with various popular religious ex- 
cesses, from an early period of the reformation, and 
witnessing a sanguinary civil war (the peasant war) 
discarded all idea of making the extent or duration of 
obedience to the magistracy depending in any way 
upon popular will. It seems in his writings, that the 
idea of magistracy presented itself to his mind solely, 
and, probably, unconsciously to him, under the form of 
unlimited monarchy. He demanded almost unlimited 
obedience to the monarch in all civil matters, because 
he strictly severed religion from temporal government. 
This is his reason. It was different with Calvin. Liv- 
ing in a republic as he did, and in a small community, 
in which naturally and necessarily the various spheres 
of public action do not present themselves so strictly 
separated from one another as they may do in larger 
empires, he infused in his writings more of a republican 
spirit, and a desire to have the state influenced by re- 



sec. xcvm.] Luther and Calvin. 351 

ligious fervor. Hence did his followers in Holland, 
England and Scotland, the same. Calvin relates in 
the preface to his first catechism — not the well-known 
little Geneva catechism — that he labored to induce the 
senate, publicly to acknowledge it. He succeeded, and 
the citizens of Geneva were called upon, ten by ten, to 
take their oath upon it. ' This action,' adds Mr. Henry, 
6 may be considered as the foundation of the later theo- 
cratic government. The citizens took the oath upon 
this confession as citizens, and he who opposed it, 
openly or not, was liable to civil and ecclesiastic penal- 
ty (3). When Calvin settled at Geneva, the city was 
already rent by religious parties and disturbed by 
great commotions, which naturally influenced Calvin's 
actions. 

We have seen what the doctrine of the Jesuits was 
respecting heretical princes ; the puritans, regarding 
episcopacy with passionate aversion, so that it appear- 
ed to them one of the worst species of heresies, main- 
tained similar views as to heretical monarchs, though 
they did not agree with the Jesuits as to the lawful- 
ness of regicide or tyrannicide. One of their writers, 
supposed to have been lord keeper Puckering, says, 
' that all persons, as well as meaner persons, must 
willingly be ruled and governed, and must obey those 
whom God has set over them, that it is the just 
authority of ecclesiastical magistrates, and must lick 
the dust off the feet of the church. That her ma- 
jesty, being a child of the church, is subject to cen- 
sures of excommunicatian by their elderships as well 
as any other people. That no man ought to aid, 
comfort, salute or obey, an excommunicated person ; 
and, that as long as any person is excommunicated, 



352 The State. [book ii. 

he cannot exercise the magistracy? (Brodie, vol. I, 
page 140, &c. where the notes are especially inter- 
esting and important). The covenanters and pres- 
byterians held similar views. It was observed at the 
time, that their writers, Knox, Buchanan, Goodman and 
others, singularly coincided in some momentous princi- 
ples with the Jesuits. Collier ad a. 1638 (4). 

The difference between Luther and Calvin, as to the 
mentioned points, is this : The German reformator, 
granting the fullest possible temporal power to the 
state, claimed full liberty in religious matters, and he 
almost alone, in his whole age, stands forth, as we 
have seen, an enemy to religious persecution, acting 
on principles, which but centuries later became ac- 
knowledged (5). Calvin, striving to unite religion and 
politics, makes religion absorb everything, and the 
church, that is, the ministers with the ' saints ' nearly 
supersede the state. Hence, every deviation from the 
strict Calvinistic doctrine appeared to his followers as 
state offence ; hence the deep-rooted spirit of exclusive- 
ness in his followers, for a long period in history. 

(1) The whole manifesto in Meteren, Hist, of the Netherl. f. 
185 & seq. 

(2) If a monarch forsakes the catholic religion, to which he is 
bound by his baptismal vow and coronation oath, the subjects must 
drive him away. No. 162 : Non tantum licet, sed summa etiam 
juris divini necessitate ac prsecepto, imo conscientiae vinculo arc- 
tissimo et extremo animaram suarum pericula ac discrimine christ- 
ianis omnibus hoc ipsum incumbit, si praestare rem possunt. No. 
160 : Incumbit vero turn maxime .... cum res jam ab ecclesia ac 
supremo ejus moderatore, pontifice nimirum Romano, judicata est : 
ad ilium enim ex officio pertinet religionis ac divini cultus incolum- 
itati prospicere et leprosos a mundis ne inflciantur secernere. — See 
the Biogr. Britannica respecting the life of Persons. 



sec. xcix.] Bacon. 353 

(3) Page 175, vol. i. of the Life of John Calvin, the great Re- 
formator, by Paul Henry, Pastor in Berlin, Hamburgh, 1835. In 
German. Mr. Henry has made use of MSS. and unprinted letters 
of Calvin's, in the libraries of Geneva and Zurich. Altogether the 
work is the production of great industry. The whole peculiar 
position of Geneva during the beginning of the reformation may 
be seen from page J 36 &- seq. 

(4) See an interesting notice of various puritan and presbyte- 
rian writers on this subject in Hallam, Const. Hist, of Engl. vol. I, 
note to pages 254 and 255, and, indeed, the whole chapter IV of 
that volume. 

(5) Bancroft justly acknowledges this honorable trait in Luther, 
the opposite opinion of most English writers to the contrary. See 
note 3 to page 274, vol. I of Hist, of the United States, by George 
Bancroft. 2d ed. Boston, 1837. It is very remarkable that so 
few English authors, even of the best, have elevated themselves to 
a sufficiently high historic eminence, so as to view Luther wholly 
and fully, as one of the architects of history. His unbecoming 
dispute with Henry VIII has so powerfully directed the attention 
of the English to the asperities in Luther's character, rather than 
to his greatness, that to this day they have not freed themselves of 
the effect. The occasional coarseness of Luther is not so indiffe- 
rent, as many of his admirers seem to believe, for it materially 
injured the cause of the reformation, nor is it possible not to pre- 
fer the violence of Luther's words to the sharpness of Calvin's 
doctrines respecting heretics. 

XCIX. However erroneous and dangerous for the 
peace of society these views were, they nevertheless 
aided in arriving at the point that there is a principle 
above the monarch, that his right is not personally inhe- 
rent, but only officially vested in him, and that the tie 
between prince and subjects is not absolute and indis- 
soluble. Bacon, who contributed essentially to a resto- 
ration of science and threw so much light on various 
branches of knowledge by his immortal work, de Dig- 
nitate et augmentis Scientiarum, treats of political sci- 

vol. i. 45 






354 The State. [book ii. 

ence, especially in the 3d chapter of the 8th book. 
But treasures are likewise contained in his Historia 
regni Henrici VII, Sermones fideles de Sapientia Vete- 
rum, Dialogus de Bello Sacro, and In felicem memoriam 
Elizabethan, Angliae reginae. The people now gain greater 
and greater prominence. He says, in the above chap- 
ter : "All who have written on laws, have either treated 
their subject as philosophers or jurists. But the philo- 
sophers propose many fine sounding but unpractical 
(ab usu remota) things. The lawyers, on the other 
hand, are so entirely possessed of the laws of their 
country, or the Roman or canon law, that they do not 
use candid judgment, but argue in fetters. Indeed, 
this knowledge is properly a matter of the citizens, who 
know but the wants of human society, the welfare of 
the people, natural equity, the customs of nations and 
the various constitutions, and w r ho, therefore, are able 
to make the laws according to the principles and pre- 
cepts both of natural equity and political wisdom" (1). 
Remembering that a lawyer and philosopher wrote this 
very passage, we shall all agree with it, if not hastily 
misconstrued. 

Hugo Grotius became about the same time the 
founder of international law, especially by his work de 
Jure Belli ac Pacis. In the mean time had begun in 
England the struggle between prerogative and the 
authority of law. Then appeared those great men, 
Selden, Elliot, Pym, Hampden, who fought a good fight 
for all civilised mankind. Respecting this whole period 
I recommend especially Brodie, Hallam, and Mack- 
intosh on the Revolution of 1688, as well as Guizot's 
History of the English Revolution from Charles I to 
James II. An eminent writer who distinguished him- 



sec. xcix.] Grotius, Puffendorf, Leibnitz. 355 

self by the liberal views he took of several important 
political subjects, so much disrelished at his time, was 
Hooker, in his Ecclesiastical Polity, especially in the 
eighth book. The views of this worthy author on the 
origin of government are so far correct, as he derives 
it originally from consent, but he derives from this point 
the contract, which, of course, misled him, as so many 
others, to erroneous conclusions. This eighth book is 
read by fewer still, than the first books of the Eccle- 
siastical Polity, yet is even now fully worthy of a perusal. 
Hobbes has been mentioned already. Puffendorf, 
who does not follow Hobbes's idea of men's warring 
against one-another in their supposed natural state, 
makes the innate desire of man for society the founda- 
tion of the family, from which, by three different con- 
tracts the state is formed. Leibnitz declared himself 
against natural law as then taught ; he considered 
Hobbes's and Puffendorfs theories as but fanciful 
dreams. Of Filmer we have spoken, and we have 
seen how Locke followed Puffendorf in the first im- 
portant points. Algernon Sidney and Milton adopted 
the idea of the contract, and founded upon it the sove- 
reignty of the people. Rousseau, in his Social Con- 
tract, adopts likewise the original contract, but the step 
he made was this, that he declared the sovereignty of 
the people inalienable, so that the people in a monarchy 
remain still, in the aggregate, the sovereign. Soon after 
the declaration of independence of the United States 
had taken place, another important era in political his- 
tory ensued. The sovereignty of the people was pro- 
nounced, and not long after declared by the first French 
revolution. 



356 The State, [book ii. 

Important in the literature of political law is Montes- 
quieu on account of his works, the Spirit of the Laws, 
Considerations on the Increase and Downfall of the Ro- 
man State, and his Persian Letters. Bodin, Machia- 
velli, and the English authors, lent him many ideas, 
though he has not mentioned them. His works, espe- 
cially the first, are replete with shrewd and not unfre- 
quently profound remarks ; but sometimes his brilliancy 
blends, and the actual truth is not seen. He has given 
currency to certain views, and even sayings, which are 
not altogether well founded (2). He adheres to the 
division of the three powers, which Aristotle adopted 
already in his trias politica. Hume's influence upon 
politics was not unimportant. The Physiocrats, in 
France, founded by Quesnay, physician to Louis XV, 
and among whom we must count so many distinguished 
Frenchmen, among others Turgot and Malherbes, the 
well-meaning and pure-hearted first ministers of Louis 
XVI, acquired no inconsiderable importance in politics, 
as they were led by their political economy to insist 
upon the abolition of the exemption of some classes 
from taxation, and on free trade, abolition of bondage 
and feudal relations. Mably, already mentioned, wrote a 
Droit public cle l'Europe, Observations sur THistoire de 
France, and several other works, which gave him con- 
siderable reputation. Adam Smith, Blackstone, Delolme, 
Hallam, Bentham,have all contributed to awaken or settle 
important political ideas. Filangieri, an Italian, wrote a 
Science of Legislation. He says, monarchs and people 
are natural enemies, and nobility is essential to recon- 
cile both. — Much respecting public law, is to be learned 
from the works of Paul Sarpi, especially his account of 
the differences between pope Paul V and the republic 



sec. xcix.] American Writers. 357 

of Venice. (Storia Particolare delle cose passate tr'a il 
sommo Pontefice Paolo V, e la Serenis. Rep. di Vene- 
zia, negli anni 1605-7). If we were allowed to venture 
such opinions, I would say, that if Italy ever be re- 
generated, it would seem that Sarpi's and Vico's works 
will be found to have contributed much to so great, so 
noble, and so desirable an end. 

In America, no work treating solely and systemati- 
cally either of natural law, or the existing public law, has 
as yet appeared ; but I would mention as works treat- 
ing of subjects belonging to these departments, or inti- 
mately connected with them, the Federalist, the writings 
of Ames, Hamilton and Jefferson, Tucker's Blackstone, 
Kent's Commentaries, Story's Commentaries on the 
Constitution of the United States, and Wheaton on In- 
ternational Law. (See Political and Legal Hermeneutics). 
The Journal of Congress before the adoption of the 
constitution of the United States, and the Debates in 
the several state conventions on the adoption of the 
Federal Constitution, 4 vols., published by congress, 
1836, are works of much importance. The work of 
president Madison, on the debates of the first congress, 
now publishing by congress, will, of course, contain 
many points of high interest relating to our subject. 

The great epochs which have had the most decided 
influence on public law, are the struggle of the Neth- 
erlands against the crown of Spain, the two English 
revolutions (many important principles of the second of 
which were never more clearly exhibited as when the 
prince of Wales, afterward George IV, insisted upon 
having the regency, at the first alienation of mind of his 
father ; when, what is not a little interesting, the more 
liberal principles were maintained, on this occasion, by 



358 The State. [book ii. 

the tories, because they had to show that parliament 
are representing the people, and had a voice in the set- 
tlement of the regency) ; the American revolution or 
war of independence, the first French revolution, and 
the epoch of that theory of legitimacy, which was pe- 
culiar to the writers under Napoleon. During the time 
of the restoration of the elder Bourbons, men like de 
Bonald and de Maistre, brought forth their strange 
mixtures of mysticism, Catholicism and absolutism. 
The rights of the people are favors of the monarchs, 
says count de Maistre. Since the French revolution 
of 1830, the theory upon which the government is ac- 
knowledged to be built, has materially changed in that 
country. French literature has teemed with political 
works, but I am not able to give a survey of them at 
this great distance, and so shortly after their appear- 
ance. Of the later or recent Germans I will mention 
only Wolf, Kant, Fichte, Hegel, Politz, Raumer (3). 

(1) "Qui de legibus scripserunt, omnes, vel tanquam philosophi, 
vel tanquam jurisconsulti, argumentum illud tractaverunt. Adque 
philosophi proponunt pulchra, sed ab usu remota. Jurisconsulti, 
autem, suae quisque patriae legum, vel etiam Romanarum, aut 
Pontificiarum,placitis obnoxii et addicti, judicio sincere non utun- 
tur, sed tanquam e vinculis sermocinantur. Certe cognitio ista ad 
viros civiles proprie spectat ; cui optime norunt, quid ferat socie- 
tas humana, quid salus populi, quid aequitas naturalis, quid gentium 
mores, quid rerum publicarum formae diversae ; ideoque possint de 
legibus, ex principiis et praeceptis, tam aequitatis naturalis, quam 
politices, decernere." 

This 'e vinculis sermocinari' is an uncommonly fine and true 
expression. Every professional man, whatever his profession be, 
ought to remember it. The previous parts of this work, however, 
will have sufficiently shown how despicable the author holds all 
endeavors of persuading the people, that wisdom in politics comes 
intuitively, without industry, without earnest application, and is, 



sec. xcix.] Revolution of 1830. 359 

as it were, a species of knowledge belonging particularly to igno- 
rance. 

(2) Certain common places fasten for a time upon mankind,, 
sometimes because true, sometimes because half-true, at others, 
because they have a captivating sound, are tersely expressed, and 
borrow the graces of alliteration or pungency of antithesis, and 
yet are not true after all. Montesquieu has said : ' no monarch 
no nobility ; no nobility no monarch.' Yet there was nobility, 
and a very noble nobility in Venice, without a monarch ; there 
was nobility in the republican Netherlands ; while, on the other 
hand, Norway is a monarchy without nobility. 

(3) A general view of the progress of public law is given with 
spirit in L. Hoffman's Inquiries into the most important Affairs of 
Man as Citizen and Cosmopolite (German), Bipont, 1830, 2 vols. 
— a work, however, from which I differ in more than one point. 



(360) 



CHAPTER X. 

Various Standards of great Political Periods. — The Government must 
depend upon given Circumstances and Materials. — Which is the 
best Government? — Errors as to an Ideal Government. — Govern- 
ments cannot be made in the Closet, or decreed. — Characteristics of a 
good Government. — Civil Liberty. What it is. Errors respecting it. 
—Majority and Minority. — The Majority are not the People. — The 
Athenians checked their own Power. — Great and true Value of Repre- 
sentative Government. — Whoever has the Power, One, Many, or the 
Majority, abuse it, and must be checked. 

• C. Since government is that institution, or organism, 
by which the state endeavors to obtain and secure the 
objects of the state, the excellence of government natu- 
rally depends upon what these objects are, and upon 
the people for whom it exists, and through whom it 
operates. People, in this sense, does not only mean 
the respective individuals, separate and for themselves, 
but in the various relations in which, according to place 
and time, they must move. Generally speaking, the 
object of the state is the aiding society in obtaining 
the highest degree of civilisation, or the greatest possi- 
ble development of man, both by removing obstacles, 
or assisting directly, in all cases in which the member 
of society ought not, cannot, or will not act individually 
and upon his own responsibility. But Rome was not 
built in one day ; civilisation resembles neither a mush- 
room nor a hot-house plant, but it is like a garden, to be 
cultivated with wisdom, that is, patiently, perseveringly, 
and judiciously, keeping steadily in view the main ob- 



sec. ci.] Standard of great Periods. 361 

ject for which the garden may have been laid out, with 
constant reference to what plants may best answer our 
ends, considering the given soil and climate. Mankind 
was not developed in one day, nor is there one absolute 
prize in the lists of history to be run for ; the moral 
growth of mankind is gradual, constant, and various, 
each time and each place affording new conditions, and 
giving new problems. 

Each great period in history, that is, each period in 
which the activity of man is directed with peculiar in- 
tensity toward the obtaining of some great end, the 
realisation of some great idea, carries within it its own 
standard. We become, therefore, in the same degree 
unjust, and obtain a narrow and distorted view of truth, 
as we apply the standard of one conspicuous period, a 
period which opens the gates of a new era, to another. 
The legislation of Moses, whose object was to lead 
bondsmen into liberty, cannot be correctly understood 
in judging it by the standard of the Spartan constitution. 
The laws, digested and emended by Lycurgus eight 
hundred years before Christ, and for a small state, do 
not give us the test to try the excellence or badness of 
the reign of Charlemagne, eight hundred years after 
Christ, over a variety of discordant and unruly tribes, 
whose first essential want was pacification. England, 
under Elizabeth, with a bull of Pius V hanging over 
her, and preceded by monarchs so violent as Henry VIII 
and Mary, had to strive for different objects than under 
the administration of an earl Grey. 

CI. Does this consideration fead to mere expediency, 
and is there no stable principle to be ascertained in poli- 
tics ? By no means. The whole preceding part of this 

vol. i. 46 



362 The State. [book ii. 

work must show the contrary. We can and must ascer- 
tain those principles which, from the nature of men and 
by ample experience, show themselves to be essential to 
the obtaining of the highest ends ; for instance, security 
of life, limb, and property. Yet these, and especially the 
last, is at times sacrificed to higher objects, and always 
subjected to the most various modifications. We must 
inquire, therefore, whether that great object, which is 
exhibited as forming the problem of the period, is a good 
one or not ; after that, it is for wisdom to judge how it 
is best to be obtained by the given means ; for others 
than the given ones are not at our disposal. ' Neither 
are laws,' says Selden, ' thus to be compared,' (meaning 
by an absolute standard). ' Those w T hich best fit the 
state wherein they are, clearly deserve the name of the 
best laws.' Note to Fortescue's De Laud. Leg. AngL, 
chap, xviii. note g, edit, of 1741. This is very different 
from Pope's : 

For forms of government, let fools contest; 
That which is best administered is best — 

a saying which, on account of its boldness and conve- 
nience, both for the ignorant and indolent as well, as those 
who find high-handed measures more suitable to their 
interest than the restraints of the law, has proved as 
popular as it is radically wrong. For a bad law cannot 
be administered well ; no Alfred could administer well 
the former Irish Brehon, or the ancient French law, ac- 
cording to which the third estate was made, and existed 
only to support the two others, which nevertheless held 
nearly all the land (1). In fact, this fallacious dictum 
seeks all good government in the personality of the gov- 
ernors, and is nothing less than the Asiatic principle ; 



sec. en.] Best Government. 363 

while the very object of good fundamental laws and in- 
stitutions is to force, as far as possible, the various per- 
sonal peculiarities, which are purely adventitious, that is, 
uncontrollable by us, as to their origin, into cooperation 
in obtaining what has been recognised as an essential 
end and object. 

(1) At the diet of Tours, in 1433, the clergy and nobility in- 
sisted that the third estate should pay the expenses of all three 
estates, incurred by travelling to and living at the diet, because 
made to support the two other estates. 

CII. The objects of the state may be divided into 
two classes : stable ones, and those which change. 
The stable objects are those which must ever be con- 
sidered as the indispensable requisites of all civilisation 
and all higher objects, that is, as has been mentioned 
several times, safety of person and property, uninter- 
rupted administration of justice. No monarch has yet 
existed, over however uncivilised a horde he may have 
ruled, who has not considered it a high claim to the 
gratitude of his people, that he has dealt out even-handed 
justice, if he could claim it at all. If we see such a 
state of things, as that which is designated by what 
ought to be called historical irony, as the jus manuarium, 
but more broadly and correctly bears in German the 
name of fist-law (Faustrecht), we must absolutely pro- 
nounce it a bad government, if government we can call 
it at all ; because it fails to secure one of the unchange- 
able objects of all government, just as that architecture 
which effects the building of no shelter at all, would be 
a bad one, whatever the materials or peculiar object in 
view might be. The changing objects of the state vary 
according to the peculiar genius or wants of the people 



364 The State. [book h. 

or society, the soil, the degree of civilisation, the condi- 
tion of their neighbors, and whatever else may power- 
fully influence the state of a certain society. Govern- 
ment, therefore, which has to obtain these ends, with 
these materials, must vary accordingly. If the materials, 
I repeat, are Jews, strongly affected by the views of the 
Egyptians, and in a state of barbarity, and the object is 
to lead them through a desert, or to conquer a country 
where they may become agriculturists, or to preserve 
monotheism amidst surrounding polytheism, the contri- 
vance, called government, to obtain these objects, must 
be very different from what it has to be with a society or 
state, whose chief object is to ward off the inroad of a con- 
quering and devastating tribe, on a small island, as that 
of the knights of St. John on the island of Rhodes was, 
or with a society possessing, by way of inheritance, the 
institutions of England, and one of whose objects is to 
people, cultivate and spread civilisation over an exten- 
sive part of a vast and fertile continent, as is the case 
with the people of the United States. If the object is 
to reform and reorganise the debased and nerveless 
population of a large country in a burning climate, as 
that of Egypt at present, the government must essen- 
tially differ from that of an industrious people, who, 
however, must unitedly struggle against the inroads of 
the sea, if they mean to do it effectually, such as the 
Dutch. If, in the course of progressive civilisation, one 
of the most inspiring and impelling elements of society 
is the beautiful, as was the case with Greece, govern- 
ment must differ from that of a people, who must defend 
themselves daily against the attacks of the Arabians or 
Moors, as the Spaniards were obliged to do, or of a 
people who live where, with all possible individual 



sec. en.] Various good Governments. 365 

exertion it is difficult to maintain life, as is the case 
in Iceland. 

If one of the fundamental objects of all government 
is to deal out even-handed justice, the organisation of 
the judiciary department must be very different with a 
people, with whom witnesses can be habitually bought, 
or where part of the population live in a semi-savage 
state, as is the case with the lazzaroni in Naples (1), 
from what it may be or ought to be with people, who 
descend from a nation, that have been accustomed for 
centuries to a high respect of justice and the 'majesty 
of the law,' as is the case with the Americans, descend- 
ing, as they do, from the English. The government 
of a narrow and extended country must differ from that 
of a compact and well-rounded one ; that of a people 
who generally feel deeply interested in education and 
industry, from that which has to be roused from the 
inertness and indifference of semi-barbarism, as the 
Russians under Peter the Great ; that of a country in 
which different races live, differing in color, disposition 
and degree of civilisation, cannot be the same with that 
of another peopled by one race, the individuals of 
which stand comparatively on a level of civilisation, 
desires, habits and wants. One of the most important 
of the given circumstances, which determine the choice 
of means in governing, must always consist of the 
means of government and laws made use of by the 
preceding generations. 

(1) The French, having conquered, among other countries, the 
south of Italy, introduced the trial by jury, but they soon were 
obliged to abolish it again on account of the venality of the peo- 
ple, as well as their general unfitness. One of the wise measures 
of the government of Joseph Bonaparte in Naples, was the attempt 
at domesticating the lazzaroni. They were employed in various 



366 The State. [book ii. 

ways and the wages were partly paid in mattresses or other house 
utensils, in order, before all, to accustom them to a civilised, 
domestic life, and to break them of the habit of sleeping in the 
open air, in gateways, &C. 

CM. All discussions, therefore, on the excellence of 
governments merely on abstract principles and without 
reference to the given circumstances, are futile. The 
science of government is no more an abstract one than 
architecture. The architect, without knowledge of pure 
mechanics and mathematics in general, will make but 
a poor bungler, yet it is of primary importance to him, 
before he can either draw the plan of a building or 
take any specific measure, to know what materials he 
has at his disposal, whether wood, bricks or marble, 
the climate which will operate on them, the ground 
on which he has to build, and the object for which 
the building is intended. So has the statesman to 
acquaint himself thoroughly with ethics, natural law and 
philosophy in general, yet he must not forget his mate- 
rials when he comes to the practical question, nor the 
object of his society. 

The political writers who have tried to settle the 
question of government without reference to the mate- 
rial, the age, and the wants of the people, have fallen 
into great errors. Some have defended monarchy as 
the ideal of government, others have thought the prin- 
ciple that every male adult, without exception, shall 
have an equal right to vote, the only just and philoso- 
phical ground on which a true government can be 
founded. On its own ground alone, however, in the 
abstract I mean, the principle of universal suffrage, by 
which men, therefore, are valued solely by their num- 
ber, is no more philosophical than valuing them accord- 



sec. civ.] Best Government. 367 

ing to any other principle, that of property, size or 
weight. It might be maintained that the large man 
consumes more than the small, consequently he con- 
tributes more to the expense of government, therefore 
he is entitled to a larger share in government. There 
are conditions of society in which property forms a 
sound basis of representation, and the soundest that 
they allow of, but is this so on its own abstract ground 1 
Does not the labor of an industrious man, or his readi- 
ness to defend the state by exposing his life, give an 
equally well founded title to the right of being repre- 
sented, and an active share in this representation? 
Whoever has adopted one principle in the abstract as 
the only admissible basis of government, has been forced 
into the strangest incongruities. 

CIV. That there are immutable political principles in 
governments, according to which we can at once pro- 
nounce some as bad, or at the utmost, as called for only 
by way of rapid transition, is evident. That, on the 
other hand, there are certain important principles of 
good government, which will steadily show themselves 
clearer with the advance of civilisation, is equally evident; 
and finally, that experience and mature reflection upon 
it, entitle us to declare certain forms and features as 
vastly eligible for a certain period, and a certain degree 
of national development, I hold to be equally true. 
Such, for instance, I consider to be, for the civilised 
nations of our times, the exalted principle of repre- 
sentative government; or that of two chambers. If 
experience shows us, that the adoption of certain prin- 
ciples always leads the people toward certain desira- 
ble ends, if they have once arrived at a certain point of 



368 The State. [book ii. 

political civilisation, we are justly entitled to declare it 
with regard to people in such a state of civilisation, and 
of such or such extent of the country they inhabit, 
a salutary one. But who would like to be tried by a 
jury of Bushmen, or insist upon the introduction of 
popular representation with two chambers in Turkistan, 
or annual meetings of parliament in China ? 

Nor do I maintain that it is impossible to settle cer- 
tain general principles in politics. One of these, for 
instance, is, I take it to be, that any class of men who 
have the power to make themselves politically felt and 
are conscious of it, have, thereby, a right to influence 
government proportionally. I do not say, that those 
who have not the power, shall on no condition be entitled 
to this right. This would be a wrong and very danger- 
ous conclusion. The cities had a right to rise into 
political influence, in the middle ages ; the peasants had 
a right to demand liberty with its consequences. It is 
the very province of the science of politics proper to 
discuss and trace out these principles, and I shall find 
occasion to touch upon a few in the sequel of this vol- 
ume, as I have done already in the previous part, when 
speaking of power. 

Governments are not made in the closet ; you may 
proclaim a republic, you may write a constitution on 
parchment, but does it work, is it a living thing ? Was 
France ever a republic in despite of her many consti- 
tutions proclaiming her to be such ? She remained a 
concentrated government, and is now only gradually 
changing her character. Lord Erskine says of the first 
English revolution : monarchy was only suspended not 
abolished. Of the French it might be said, that abso- 
lute monarchy changed the name ; and of the United 



sec. cv.] Good Governments. 369 

States we may well say, Republicanism was only veiled 
as long as they were colonies. I do not indeed mean 
to say, that no government can change, but it cannot 
leap over into something else, nor ever become any- 
thing but what is conditioned by the existing materials. 

C V. Which is the best government ? That govern- 
ment which fulfils best its purpose, by which, however, is 
not meant a momentarily so-called flourishing state only. 
For such a state of things may, at times, poison the very 
life-blood of a state, and undermine instead of leading 
to a higher degree of liberty, the main object of all 
governments, because greater liberty is but greater pro- 
tection — protection of free individual action. 

Speaking of civilised nations, that government ought 
to be called good, which amply protects and in which 
every man can obtain justice ; which, for its existence, 
does not require a class by whose privileges others are 
injured, be this a wrongly privileged aristocracy, or 
democracy, or party. That government is the best 
under which we find the greatest number of laws and 
institutions, essential to that state, founded, developed, 
or secured, with which the nation works heart and hand 
for just and great ends (1); which forms one living 
organism with the people, and with which in times of 
danger they join with true devotion, considering their sac- 
rifices to it, as sacrifices to the common-weal only. That 
government which has in itself that peculiar expansive- 
ness as well as that organisation, which not only allows, 
but necessarily leads to farther and farther political de- 
velopment, and goes on raising the individual as a 
political being. When we see the flourishing state of 
a nation essentially connected with institutions, and 

vol. i. 47 



370 The State. [book ii. 

when we find the fundamental institutions with an 
expansive character, not of a cramping obsoleteness, 
then we may have a right to suppose that the govern- 
ment is good (2). Seek not protection or liberty in 
mere forms. No political form, that can be imagined, 
has not at times been oppressive and ruinous. Life, 
true and high action, is the thing we must look for; 
mere form kills. 



(1) Popularity is far from constituting the sole index of good 
government, not even the universal readiness of the people to share 
the dangers of war. The wars of the Mongols were essentially 
national and not cabinet wars ; but was the Mongol government a 
good one? 

(2) There are certain meteoric periods in the historv of some 
nations which pass quickly, and leave no life, as the kindling ray 
of the sun does, though he may vanish for a time from the heav- 
ens. There are few more glorious epochs in the annals of any 
people, than that of the Portuguese, which begins with the striving, 
gifted, enlightened and enlightening prince Henry the Navigator, 
and winds up with Louis Camoens, that noble martyr of genius, 
and includes the invention of the sextant, those vast discoveries, 
heroic deeds and enlargement of knowledge, and the names of 
Diaz, Gama, Cabral, Andrada and Albuquerque. Yet the period 
was not only, historically speaking, brief; but dark night succeed- 
ed, and the Portuguese nation has ever since presented a painful 
instance of a misruled people. They had no sound institutions. 
Neither national riches, nor glorious names, nor heroic deeds, nor 
brilliant literature, nor absence of commotion alone are capable 
of saving a nation, or furnish us, of themselves and without refer- 
ence to something else, with a safe exponent of good government. 

CVI. That government is the best which secures 
most effectually all the stable objects of the state, and 
aids most wisely in obtaining all the others ; which pro- 
cures in the calmest and yet most efficient way all 



se€, cvi.] Bad Governments. 371 

things that must be obtained for society, and does not 
oblige the people frequently to resort to sudden and 
violent actions in order to obtain what needs must be 
obtained by united action, and which government, 
nevertheless, fails to procure ; that government which 
interferes least with my individuality and yet affords 
to society the best opportunity for the highest indus- 
trial and mental action — in fine, that government, which 
continually remembers that every individual has an 
undeniable right to the greatest possible individual 
activity, and, therefore, protects against all interference 
with him, and secures to him all that which is necessary 
to him as a social being. There, where w 7 e see great 
personal security and high social action, where individ- 
ual and social rights and claims are best secured and 
promoted, there is the best government. Where per- 
sonal and social activity is paralysed, where the mental 
life of society is deadened, where the individual receives 
no equivalent for his sacrifices, where one part of soci- 
ety is sacrificed to another, that is, where no equivalent 
is received ; where a few control and arrogate govern- 
ment to themselves, like the property which belongs 
to them ; where, above all, the stable objects of all gov- 
ernments are but partially secured, or, if entirely, only 
for a few, and where no industrial, moral and mental 
expansion of society exists ; but on the contrary where 
measures of government have a benumbing effect, 
where protection depends chiefly upon the personality 
of those in authority, and not upon well-grounded 
institutions and laws, not conceived with regard to their 
operation and salutary effect, but on account of extra- 
neous and unessential considerations, where we see 
numerous laws being issued, but without action and 



372 The State. [book it. 

soon forgotten, nominal institutions without roots in the 
history of the nation, there is a bad government. 

CVII. Here we have to guard ourselves against two 
errors. The high intellectual or social activity of a part 
of society may be, and often has been obtained, by a 
sacrifice of the most essential interests of far the greater 
majority of the people. I speak of those brilliant gov- 
ernments which blind the superficial observer, such 
as that of Louis XIV. They have an equally danger- 
ous effect upon the hasty observer of after times, who 
seizes only on what is striking and does not suspect 
the sacrifices which were necessary to produce it. A 
palace of a Louis XIV is remembered, long after the 
squalid population which had to pay taxes towards it, 
have been forgotten. 

CVIII. Yet we must be careful not to take the phy- 
sical well-being, either by way of physical comfort or 
personal and physical security — two most important 
objects of government, indeed, because they are the 
foundation for higher objects — as its sole end or only 
index of excellence. It was a true saying of Plato's : 
6 not to live, but to live nobly is the object.' Per- 
sonal security against bodily harm, for instance, may 
be obtained together with personal liberty, and forms 
part of it, in which case it is excellent; or it may 
be obtained at the price of personal liberty. An 
extensive preventive police may, by fettering all 
free individual action, prevent many offences indeed, 
but mere physical security is not the object of gov- 
ernment. Society stands in need of it, because 
without it, society cannot obtain its highest object — 



sec. cix.] Happiness Principle. 373 

civilisation, which includes free, individual activity. 
There is peace indeed in a prison. If you put a man 
in irons he cannot do harm, it is true, but neither can 
he do good. The so-called happiness principle, if 
happiness be rightly understood, is correct, but a most 
mischievous one if we limit it to physical well-being 
only, as, certainly, it is taken by many of its advo- 
cates. Is this happiness indeed the last term to be 
striven for ? If so, why feels every one in the course 
of his life called upon to give it up to higher objects 1 
Is this happiness always the means through which we 
reach the highest objects of man ; or is it toil and trou- 
ble, sacrifice and even woe in many cases? Has a 
nation not to sacrifice happiness to liberty ? Is it 
merely the avoiding of higher taxes which shall prompt 
a people to bold, high, national actions ? 

CIX. Had not this erroneous position been fre- 
quently taken, it would not so often have been asserted, 
that the best government is an absolute monarchy, with 
a truly just and wise king. It is a most radical error. 
An absolute government, which forces to act, and does 
not animate and fructify the principle of self-action, un- 
dermines the state by its very character and exposes to 
the greatest danger both by the death of the just and 
wise ruler, who cannot insure the same qualities in his 
successor, and by blinding the people, who, content 
with their physical welfare and perhaps the brilliant 
energy of the government, are ready to abandon all 
law and all institutions, placing implicit confidence in 
their rulers, until recovery is too late. 'Where the 
security is no more than personal, there may be a good 



374 The State. [book ii. 

monarch, but can be no good commonwealth.' Har- 
rington's Polit. Aphorisms. 

CX. So unfounded is the error, that the very oppo- 
site may be supported with far greater truth ; for his- 
tory shows that it is the wise government, tending 
towards absolutism, which is most dangerous to the 
people, not the galling, openly or cruelly tyrannical one. 
This rouses, the other lulls into sleep. That a high- 
handed absolutism may be the best government for the 
society at large, as a stage of transition only, under pecu- 
liar circumstances, cannot be denied. When the ruler is 
far in advance of a barbarous or semi-barbarous nation, 
as was the case with Peter the Great, when discordant 
and heterogeneous elements have to be united and 
forced into a uniform action, as was the case after the 
migration of nations, when a society infested with 
swarming banditti, in open war with all authority, has 
to be rescued, as central Italy under pope Gregory 
XIII, when civil war has torn the country and a rest- 
less party foments conspiracies, as under Cromwell, 
bold, high-handed measures are often indispensable, 
and the only salutary ones; but they form the ex- 
ceptions, and cannot lead to the rule, just mentioned, 
that the best government would be absolutism in the 
hands of a good ruler. If a ruler, even in cases as the 
above, neglects to awaken the principle of civil life, even 
while with a high hand he pursues the general welfare, 
disregards private rights, he still omits as much as he 
performs. For, instead of inspiring society with the 
breath of life, he deprives it of it, and, consequently, 
renders it unfit for future generations to obtain those 
objects for which all absolutism, even the best, can be 



sec. cxi.] Wise absolute Monarchs. 375 

but a temporary means. If, then, we find it asserted, that 
that government is the best which best provides for the 
substantial interests of the people, we shall know how 
far to yield assent. Everything depends upon what we 
understand by substantial interests. If they mean what 
has been shown to be the true object of society, it is 
most true, for all forms are but means or necessary 
effects of that which is essential. If by substantial 
interest, nothing be meant but personal safety, absence 
of danger, and plenty, even at the price of individuality, 
mental free action, it is not true. Rather all the danger 
of error, than that torpid state, where there is neither 
truth nor error, but mere political stagnation. 

"Generally speaking," says Schiller in his Lecture 
on the Legislation of Lycurgus and Solon, "we may 
lay it down as a rule in judging of political institutions, 
that they are good and praiseworthy only in as far as 
they further the development of all faculties, with which 
man has been endowed, in as far as they promote the 
progress of civilisation, or at least do not impede it. 
This is equally true of religious as of political laws ; both 
are objectionable, if they fetter a faculty of the human 
mind, if they impose upon it, in any sphere, a standing 
still. A law, for instance, by which a nation were 
bound, unalterably to keep a system of dogmatics, 
which appeared to it at a certain period as the best, 
would be a criminal attempt against humanity, and no 
intention, however plausible, could justify it. It would 
be directly against the highest good, the highest object 
of society." 

CXI. One of the great errors into which philosoph- 
ical politicians have frequently fallen, in consequence of 



376 The State. [book ii. 

seeking for a government absolutely and abstractedly 
good, is the idea that the people, being themselves the 
object of all government as well as the real source of 
power, the best government will be there, where the 
people have absolute power. Let us investigate this 
subject with the attention and sincerity which its mag- 
nitude requires. 

It is asserted, that if the people for whom alone the 
government exists have the sole power, it is clear, that 
they will not act to their own injury. This is errone- 
ous ; first, it would apply to such people only as are suf- 
ficiently enlightened to know what is their true interest. 
The Caffres, and, indeed, I believe all savage tribes, 
have essentially what are called popular governments. 
Yet they do not rise out of their state of barbarity ; 
no one would consider this government preferable 
to one which might be less popular, but should force 
them to keep peace. Secondly, this proposition rests 
as so many others, on a deception, owing to the per- 
sonification of an idea, which means an aggregate, not 
an abstract. Who are the people ? Is it one individual 
or a number of individuals, called, for convenience sake, 
by one name, or because w 7 e imagine it as a body of 
individuals, who, regarding many and most essential 
points, but not all, are impelled by a common interest ? 
Are the people an aggregate of a number of individuals 
with one mind, one will, one impulse, or do the people 
consist of a majority and a minority ? Giving unbound- 
ed power to the people means, then, nothing less than 
giving unbounded power to a majority ; for, as a mat- 
ter of course, the majority must possess it, if the people 
have it at all. We are repeatedly told, that the people 
can do what they like ; but have they the right to de- 



sfx\ cxii.] Civil Liberty. 377 

prive the minority of their property as they have done 
on various occasions, or to enslave them, to kill them, 
as the majority of Corcyra did, during the Peloponne- 
sian war (Thucyd. iii. 70, 85) ; or the French during 
the first revolution, for though the executions during 
the reign of terror, first took place after sham trials, 
toward its end it was decided, that being suspected 
should suffice to mark the victim, which, in plain Eng- 
lish meant, being in the minority is a capital crime. 
Have the majority the right to deprive the minority of 
speech? in short, to deprive them of any essential 
attribute of man, or to deny them any of the main rights 
of the citizen and chief objects of the state 1 Have 
they the right, however frequently it may have been 
done, to arrogate to themselves the name of the people, 
and to treat every one of the minority as if not belong- 
ing to the people ? 

CXII. Our definition of liberty must necessarily de- 
pend upon the view we take of the state and its ob- 
jects, so that the ancients sought liberty in something 
different from what appears to constitute the essence 
of modern liberty, a subject to which I shall revert on 
a subsequent page. But whatever liberty may be — 
and it certainly consists as much in the absence of re- 
straint and interference with actions which individuals 
may practise, as of that with which authority may limit 
my activity, in short, in protection, that is, protection 
against individual violators of my rights, against the 
elements, if they defy individual exertion, and against 
anything which interferes with my being truly that 
which I ought to be, as far as I alone cannot remove it — 

vol. i. 48 



378 The State. [book ii. 

whatever liberty may be, it is of little political value to 
nations, unless something definite, distinct ideas em- 
bodied in palpable institutions, or fundamental laws, be 
meant by it; except by way of rousing degenerate 
generations. In this case even a vague notion of liberty 
may be of much service, in order to throw the first spark 
into torpid hearts. 

As long as liberty remains a generality, its love a 
longing and feeling rather than a definite conception, 
it is a poetic principle, capable of prompting to gener- 
ous actions, but of little use as to the proper conception 
of what these actions ought to be. It is in institutions 
that liberty is embodied, and for what end are these 
institutions established 1 To promote and to protect. 
To protect whom ? Him that wants protection. Who 
wants protection ? Most of all, he who does not agree 
with those that have the power. One of the truest 
signs and safest exponents of substantial liberty, there- 
fore, is the unwavering protection which the individual, 
opposed to power, enjoys, the minority — in a word, the 
absence of absolute power. 

A late writer strangely asserted, that liberty exists in 
that degree as representation and constituency agree — a 
puerile assertion, which it would be superfluous to men- 
tion, had not the same writer issued, of late, various works 
on subjects connected with politics, claiming, probably, 
the same attention of the public for them, which his 
previous productions of an entirely different sphere have 
enjoyed. If that assertion be true, it either exists not at 
all where there is no representation, and the body of 
the people act directly, or it exists always in this 
case. But though an overwhelming majority sentenced 
Socrates for blasphemy, for him there was in that case 



sec. cxii.] Civil Liberty. 379 

no liberty at Athens. Suppose, moreover, the will of 
the constituents is wicked, tyrannical, does liberty still 
exist because their representatives are perfectly willing 
to act up to their desire ? A strange sort of liberty, 
which solely depends upon something external and rela- 
tive—the agreement of two parties ; and not upon some- 
thing essential and positive. This untenable view is 
another misconception arising out of the primary error 
of a natural state of man, and a natural liberty, in which 
man is believed to be absolutely without any restraint, 
except his own conscience and understanding, which, 
however, it would appear, must yet be very weak. 
Civil liberty, therefore, is judged by a negative standard, 
that is, it is believed the less you are required to give 
up of that original and perfect natural liberty, the greater 
the amount of civil liberty. The idea is wrong, radically 
wrong. Liberty, as every thing else of a political char- 
acter, necessary and natural to man and noble to be 
striven for, arises out of the development of society. 
Man, in that supposed state of natural liberty, which is 
nothing but the roving state, is, on the contrary, in a 
state of great submission ; he is the slave and servant 
of the elements ; matter masters his mind ; he is exposed 
to the wrongs of every enemy from without, and depend- 
ing upon his own unregulated mind. This is not liberty ; 
it is plain barbarism. Liberty is materially of a civic 
character. Doubtless, I cannot live a day without feel- 
ing the restraint of law, that is, the effect of my living 
with others. Now, inquire whether this restraint is the 
giving up of something you may be supposed to have 
once possessed entire, or whether the whole is of social 
origin. You are not allowed to speak against the repu- 
tation of a neighbor. This is a restraint ; had man ever 



380 The State. [book ii. 

the liberty to speak against his neighbor what he liked ? 
In that state of nature he had no neighbors. He was, 
questionless, allowed, if ever he lived in that state, to 
mutter to himself what he chose ; so you may now say 
against your neighbor what you like, provided no ear 
but yourfown hear it. 

Liberty, I would say, exists in the degree in which 
my action and activity in all just and right things is un- 
trammeled, in the protection of my individual rights, 
and in the same degree as I am not sacrificed to others. 

But, it may be objected, can the majority be supposed 
to desire anything wrong ? 

CXIII. Let us calmly and with truthfulness consider 
history and the nature of man, and we shall find the 
answer. We all acknowledge that man is a frail being, 
subject to a thousand sinister influences ; we all acknow- 
ledge that wise men are infinitely rarer than unwise, yet 
the aggregate of these individuals, shall constitute a wise, 
just, dispassionate body. Where is reason in this argu- 
ment ? Is there more reason in it than to expect wis- 
dom from the accident of birth, in hereditary monarchy ? 
The people, the majority, are subject to sudden im- 
pulses, to passion, fear, panic (1), revenge, love of power, 
pride, error, fanaticism, as individuals are, for they are 
individuals ; and they are as much obliged to check 
their united power, as that of small bodies and individ- 
uals must be checked. Socrates, when in anger, was 
in the habit of counting quietly a large number, to allow 
time to his excitement to pass over. He was a wise 
man indeed. A law of Alphonso II, of Spain, decrees, 
that a sentence of death or mutilation shall not be exe- 
cuted before the twentieth day after having been passed, 



sec. cxiii.] Popular Excitement 381 

so that, should it have been pronounced in wrath, there 
might be time for reconsideration. It was a wise law, 
in a period when the necessary guarantees of caution in 
the trial itself had not yet been discovered. The peo- 
ple at large stand as much in need of retarding pro- 
cesses as that Grecian sage or those Spanish courts. 
The Athenians distrusted their own power, and a citi- 
zen who proposed anything against the established and 
fundamental law, was punishable. He remained so, 
even if his proposition had been adopted, for one whole 
year, and the naQavo^wv yQacpr] could reach him, 
which, therefore, was considered by the Athenians as 
the great protection of the state. Whatever we may 
think of the means, we cannot but agree in respecting 
the principle (2). In that same immortal city, to which 
mankind owe so much more than to any other, no law 
affecting a single citizen, could be passed, if six thou- 
sand votes could not be collected in favor of the same (3). 
And we must never forget one fact, of great importance 
respecting popular excitement, whether it consist in 
panic or anything else, that, if it be true on the one 
hand, that large numbers cannot, in their nature, be so 
easily influenced, in many cases, as individuals, it is 
likewise true on the other hand, that all men are apt to 
mistake repetition for confirmation. If I leave my house, 
and twenty persons speak to me successively of the 
same fact or impression, it has a strong tendency to 
make me believe what they say ; yet all these twenty 
persons may have derived their first impression directly 
or indirectly from the same original source, which may 
or may not have been correct. Hence the incalculable 
power of rumors, the surprising belief and many actions 
of great masses, at all times of general excitement, which 



382 The State. [book ii. 

the historian of after times is unable to trace back to any- 
satisfactory source, or of which it is difficult for him to 
conceive even how they were possible. The beginning 
of the first French revolution furnishes several strik- 
ing instances. See the Memoirs, also Carlisle, Thiers, 
&x. Rumor moves on like an avalanche. All that 
Virgil said of the ancient Fama, holds likewise of the 
modern : 

Mobilitate viget, viresque adquirit eundo ; 
Parva motu primo ; mox sese attollit in auras 
Ingrediturque solo et caput inter nubila condit. 

But to this must be added, that in our times, she flies 
incomparably swifter, because the thousands of news- 
papers are her wings, and she is, in many cases, infi- 
nitely more obstinate, because the word is no longer 
evanescent breath, but fastened and fixed by types and 
print. 

(1) When the Asiatic cholera raged in Hungary, the peasants, 
the vast majority of the population, killed the nobility with excru- 
ciating torments, because the deluded people believed that the 
wells had been poisoned. Something similar took place in Paris, 
and quite lately several Englishmen were murdered by the popu- 
lace of Rome, because suspected of wickedly charming some 
inoffensive children. 

(2) iEschines ag. Ctesiphon, p. 388 "& seq. and p 580 ed. 
Reisk. The orators speak continually of the nagavdjicov yq&w. 

(3) Andocides on the mysteries, p. 42, 47. Demosthenes ag. 
Aristocrates, p. 649, 4, p. 692, 25 and several other passages. 

CXIV. Here, then, we find the great principle of a 
representative government, even in a democratic re- 
public. It is not because the people are too numerous, 



sec. cxiv.] Representative Principle. 383 

and cannot any longer assemble in the market, as in 
the ancient republics, that representative governments 
are advisable, or have become necessary, merely by 
way of expediting business, but it is on the very same 
principle that a monarch, who interferes himself and 
does not leave matters to their proper authorities, even 
in absolute monarchies, is considered to act despotically, 
that the people, if they hold the supreme power, must 
not act themselves, but ought to act through agents. He 
who has power, absolute and direct, abuses it; man's 
frailty is too great ; man is not made for absolute 
power. 

Everywhere it is now considered tyrannical — it was 
even so under so absolute a king as Louis XIV — when 
a monarch sits in judgment himself; and it is tyranny, 
likewise, if the people do not judge through their 
courts. Frederic the Great, w T ho was very anxious to 
remove a wind-mill close before the centre window of 
his favorite palace at Pozdamm, could not induce the 
miller to sell it. The king, irritated, threatened the 
owner to force him to consent. 'There is a supreme 
court in Berlin,' answered the miller. The king was 
silent, and the mill stands to this day, an annoyance to 
the palace, but one of the best monuments which an 
absolute monarch ever erected to himself, as an ambas- 
sador w T rote home from Pozdamm. It was stated of late 
that the present owner was very anxious to sell the mill, 
but the descendant of Frederic considers it too proud a 
monument of his forefather, to allow it to be removed. 
I do not know that there is anything at which an 
American can point with greater pride, than the deci- 
sions of his courts, by which even legislative enact- 
ments have been declared unconstitutional, and which 



384 The State. [book ii. 

decisions are still in force. We shall see that the inde- 
pendence of the judiciary is one of the most important 
guarantees of civil liberty. England owes her greatness, 
in a high degree, to her independent judiciary, the 
independence of the law. It is, therefore, a political 
error that some states have made the judges eligible for 
a few years only. It is, in fact, the majority — not even 
the people, the sovereign, which would be bad enough — 
taking the administration of justice into their own hands, 
on the ground that they shall administer it according to 
the sense of the people. There is tyranny, where the 
holder of power sits in judgment or influences it. 

CXV. If it be true, as already mentioned, that a 
multitude, in many cases, are not so subject to sudden 
impulses as an individual, it is equally true that it is 
more difficult to disabuse a multitude than an individ- 
ual. There are several other points which we have yet 
to consider in comparing monarchical and democratic 
absolutism. It has been frequently observed after lord 
Coke, that ' corporations are without souls.' Why is 
it so, can the individuals forming them, be imagined to 
be peculiarly bad ? If so, it could not be a general 
remark ; for corporations may consist of very different 
persons. The answer is simply this : because respon- 
sibility does not present itself so distinctly to a member 
of a multitude as to an insulated individual. Many an 
individual, indeed, will break down a house, nay, com- 
mit homicide, if joining a mob, or becoming the member 
of a criminal association, who would shudder at taking 
the responsibility of these actions individually upon 
himself (1). 

Another remark of high importance is to be made 



sec. cxv.] Absolutism. 385 

respecting democratic and monarchical absolutism. 
What is absolutism, the Tcauftaoilua of the Greeks ? 
The striking appearance, the form rather than the 
essential principle, have in this case, as so frequent- 
ly, misled. Authors and politicians treat of absolut- 
ism as if there existed none but monarchic absolut- 
ism. It is not so in reality. A late writer, Mr. Dahl- 
mann, defines absolute government thus : ' When gov- 
ernment has not only power, but all power, not only 
superioritas, but absolutum imperium, it is absolute gov- 
ernment.' This seems to be a circle ; absolute gov- 
ernment is absolutum imperium. No doubt it is, be- 
cause it is the same expressed in two languages. I 
would say, wherever all power that can be obtained, 
is undivided, unmodified and un-inediatiscd, somew 7 here, 
whether apparently in an individual, or a body of men, 
or the whole people, which means in this case of course 
the majority, there is absolutism. The Athenian de- 
mocracy sank into absolutism. I shall recur to this sub- 
ject. Comparing democratic and monarchic absolutism, 
we shall find that the latter must needs rest its power 
somewhere without the monarch himself; for, as has 
been several times observed, the monarch has person- 
ally no more power than the meanest of the crowd. 
He must be supported by opinion without him ; but 
democratic absolutism is power itself — it is a reality — 
fearfully sweeping power. It is real power, a torrent 
which nothing can stem. If an individual opposes 
monarchical absolutism, there is something heroic in it 
in the eyes of the people ; if a man opposes democratic 
absolutism he is at once considered a heretic, a traitor 
to the common -weal. On the other hand there is, 
indeed, a difference in democratic absolutism, namely, 
vol. i. 49 



386 The State. [book ii. 

that, if at its height, it necessarily leads to anarchy, and 
hence to a change ; for anarchy is against the nature of 
man, and nothing remains long which contends against 
its own nature ; while monarchical absolutism may last 
centuries, as in Asia. Democratic absolutism may, if 
not in its height, yet in an obnoxious degree, exist for 
a long time, in lesser communities. 

(1) To what fearful degree of depravity men sink, what enor- 
mous crimes they may be ready to commit as members of a soci- 
ety, under a common pledge, was lately exhibited in the trial of the 
Glasgow cotton spinners, in Edinburgh, January, 1838. A society 
had been formed for the purpose of keeping up high wages, not 
disdaining atrocities and murder as a means to effect their object. 
If a murder was to be committed, the lot decided who should 
commit it. 



CXVI. The untenable ground on which absolutism, 
of whatever kind, rests, can be shown also in this way. 
Absolute power in the state necessarily demands abso- 
lute obedience, for without obedience to government 
there is no government. What other meaning has 
authority, than that in some way or other it can direct 
our actions 1 We cannot say then, ' here is absolute 
power, but the citizen need not obey if he choose not 
to do it.' It would be a contradiction in itself — it would 
not be absolutism. Are the minority not bound to ab- 
solute obedience, though the majority have absolute 
power 1 These are contradictory terms. But as I 
have had repeated occasion to observe, and as we shall 
farther see in the chapter on Obedience of the Laws, 
absolute obedience is not only immoral but impossible. 
Absolutism, therefore, in whatever shape, falls to the 
ground. 



sec. cxvn.] Political Flattery. 387 

CXVII. Where power lodges, thither flattery flows. 
The prince — I here use this word not only for monarchs, 
but, as the Venetians were in the habit of using it of 
their large body of nobles, who jointly had the supreme 
power, of the power-holders in general, whoever they 
may be — the prince loves flattery. Let us always be- 
ware of it. Every one, we too, love flattery, if we have 
power. Power, it will be remembered, has an inherent 
tendeney to absorb, increase, extend, and interested 
men will always be found in abundance, to help along 
this tendency, because it is pleasing to power to in- 
crease. Every prince, used in the above sense, finds 
his courtier. Republics are not freer from base cour- 
tiers than monarchs. The power-holder finds always 
ready instruments ; and we ought early to learn how 
to guard against the flattering insinuations of those who 
live in the wake of power. Power loves to be flattered, 
the same flatteries are ever repeated. The Turkish 
conquerors, the Solimans, Mustaphas, Mahmouds loved 
to hear their fury compared to the ire of God and the 
lightnings of the heavens ; and we have seen already 
how the revenge of the French people in the first re- 
volution was complacently or cunningly compared to 
vast natural phenomena. Demagogues are but cour- 
tiers, though the court dress of the one may consist in 
the soiled handkerchief of a Marat, that of the other in 
silk and hair-powder. The king of France was told in 
] 827 : ' The royal absolute power exists by natural 
right. Every engagement against this right is void. 
Thus the prince is not obliged to hold his oath' (1); 
and in America the people of a large state were lately 
urgently advised to break a solemn engagement, be- 
cause they, the majority, had sovereign power. When 



388 The State. [book ii. 

Napoleon was at the summit of his power, the arch- 
bishop of Paris wrote to his bishops in a pastoral letter : 
• Servants of the altars ; let us sanctify our words ; let 
us hasten to surpass them by one word, in saying he 
(Napoleon) is the man of the right hand of God ; ' (2) 
and one of the presidents of the United States (Gen. 
Jackson) was told in a pamphlet that he was the actual 
representation and embodiment of the spirit of the 
American people, the personification of American de- 
mocracy, that is, of the American nation. 

(1) A. R. Dedilon, Coup-d'oeil sur les constitutions et les parties 
en France, Lyons, 1827. 

(2) Goldsmith Histoire secrete, page 130. Can the author have 
invented it ? I only know it from that work. The bishop of 
Amiens says in his mandement, * The Almighty having created 
Napoleon, rested from his labors.' Fabre de l'Aude, president of 
the tribunal, said to Napoleon's mother, ' the conception you have 
had, in carrying in your bosom the great Napoleon, was certainly 
nothing else than a divine inspiration.' It is well for us fearlessly 
to see how far man is ever ready to err, as soon as opportunity 
offers. Shall we wonder that the Romans deified their emperors 
and worshiped their images ? Had power such effect, so shortly 
after one of the bloodiest revolutions in the name of liberty, after 
the christian religion had been professed for centuries, a religion 
which teaches that the mightiest emperor is but a sinful servant in 
the presence of God, and we should be surprised that the Roman 
emperor was considered godlike by the subject, whose gods had 
abandoned him? (See the last chapter of this volume). 

It is not good, between individuals, to rake up past follies; it is 
noble not only to forgive, but truly to forget. What is true of 
individuals, holds likewise of nations. Not, therefore, to offend, 
I wish that some one would publish the most remarkable addresses 
made to Napoleon in and out of France; I wish it, that we may 
have them as a mirror of ourselves ; for is it not our own time, 
which committed these guilty follies? No man can improve, 
unless he reflect at times seriously on his past life ; so it is with 
nations, with mankind. 



(389) 



CHAPTER XI. 

Political Atony one of the greatest Evils. — The Ancient Tyrannies. — 
Variety of Means to Check the Abuse of Power. — Can Power be con- 
trolled? — Who controls the controlling Power? — Constitutions. — Are 
Written Constitutions of any Value ? — Constitutions are Indispensa- 
ble. — Various Reasons why and Circumstances when Written Consti- 
tutions are desirable or necessary. — Division of Power ; Legislative, 
Executive and Judiciary. — Great Danger resulting from Confusion of 
these Branches, in Republics as much as in Monarchies. — Importance 
pf the Separation of the Executive from the Legislature. — Vast Im- 
portance of an Independent Judiciary. — What does Independent Judi- 
ciary mean ? — The farther political Civilisation advances, the more 
independent does the Judiciary become. 

CXVIII. The state requires power ; without public 
power government cannot act, it cannot obtain its ob- 
ject, is unable to protect, and to enforce obedience to 
the laws ; yet, on the other hand, all power has a ten- 
dency to increase. Without power, government, the 
laws themselves become despicable, political immorality 
and along with it all other immorality increases like a 
very cancer of society. This state of things may be 
called, borrowing a term from the healing art, atony, 
the necessary forerunner of a change of government 
either directly or by the intermediate state of anarchy, 
which I distinguish from the former by this, that atony 
is a state of general disregard of law from weakness, 
want of energy, a depression of the vital spirits of so- 
ciety ; while by anarchy I would denote rather a chaotic 
stirring of the elements of society, open, forcible, avowed 



390 The State. [book ii. 

disregard of the laws, and the principles of political 
society. Atony existed under the Merovingians, anar- 
chy frequently in the feudal times. Atony exists in 
some parts of Turkey, anarchy in some parts of Spain. 

If, on the other hand, power is permitted to go on 
increasing, it leads to despotism, by which is meant that 
state of the political society, in which power alone de- 
cides, because it is power. Despotism may consist in the 
abuse of supreme power for purposes entirely at variance 
with, or hostile to the objects of the state, in which case 
we call it, in modern times, tyranny. The ancient word 
tyrannis meant something different; it was usurpa- 
tion of supreme power, not necessarily connected with 
cruelty or oppression. Pisistratus was called a wise 
tyrant. Or he, that has the supreme power, may use 
more than has been granted him ; in other words, the 
legitimate limits of public power may be transgressed. 
In the latter case, though despotism exist, it may still 
use the public power for purposes of general utility. 
A nation on its guard never suffers it ; but too fre- 
quently does tyranny creep in as popular despotism. 
(See Hermeneutics). A process, perhaps, still more 
remarkable, and yet frequently exhibited in history, is 
that by which despotism steals into power by opposition 
to power. It is a very common mistake of the unwary 
to consider opposition to power at once as an indication 
of love of liberty, yet that the contrary can take place 
has, among many instances, sufficiently been proved 
by the attacks of the Jesuits or their adherents, with 
the ablest pens and the sharpest daggers, upon many 
protestant governments (1). Whatever our opinion of 
that remarkable society may be, I suppose we all agree, 
that it was not civil liberty they strove for. Some of 



sec. cxix.] Control of Power. 391 

the most vehement speeches in favor of popular liberty 
on the floor of the French chamber of deputies are 
made, at present, by the adherents of elder Bourbons. 

(1) Mariana, de Rege et Regis Institutione. — Balthasar Ge- 
rards, the assassin of William of Orange, surnamed the Silent. 

When the estates of France were assembled for the last time, 
in 1614, at the diet already mentioned, the bishops maintained 
that ' the church is authorized to depose kings,' and the nobility 
added 'the abuse of power is a legitimate ground for deposition.' 
The third estate alone denounced these principles. And what 
was called abuse of power? There existed no greater in the 
eyes of the clergy and nobility than interference with their immu- 
nity from taxes. It was this and the possible leaning to protest- 
antism which was meant in this case. 

CXIX. A variety of expedients to retard the in- 
crease and regulate the use of power has been re- 
sorted to, some of which shall be considered here. 
The only way of avoiding effectually the evil is to pre- 
vent the generation of too much power, which however, 
is not easy, for the simple reason, that public power 
must exist, and if it exists, no matter where, it not only 
tends to increase by itself, but always finds both assist- 
ance and general respect. (See previous chap, on Power.) 

Much has been said of the control of power. Who 
can control power ? Of course, only he who has greater 
power. But the very object of all inquiry connected 
with this subject is to find out how that greatest, strong- 
est power, no matter who wield it, who, in fact, be the 
prince, can be prevented from growing stronger than 
the interests of society require. Control of power 
would mean, therefore, self-control, which, in this case, 
would have no meaning. There may be one authority 
controlling another, for instance, a council may control a 



392 The State. [book ii. 

governor ; there may likewise the supreme power be 
checked by various things, for instance, by public opin- 
ion, but strictly speaking, the supreme power cannot 
be controlled as far as it exists, if there be any dispo- 
sition to abuse it, which is especially the case in all 
periods of intense political interest. The question then, 
is, how to prevent the existence of too great an amount 
of power. 

CXX. One of the most common means resorted to 
are constitutions. Constitutions are the assemblage of 
those publicly acknowledged principles which are deem- 
ed fundamental to the government of a people. They 
refer either to the relation in which the citizen stands 
to the state at large, and, consequently, to government, 
or to the proper delineation of the various spheres of 
authority. They may be collected, written, and may 
have been pronounced at a certain date, such as the 
constitution of the United States ; or the fundamental 
principles may be scattered in acknowledged usages 
and precedents, in various charters, privileges, bills of 
rights, laws, decisions of courts, agreements between 
contending or otherwise different parties, &,c. such as 
the constitution of Great Britain is. We hear, there- 
fore, frequently of the constitutions, not constitution of 
a realm or principality. Thus, the ancient fundamental 
laws of some of the Belgian states before the war of 
independence of the Netherlands against Spain, were 
exceedingly complicated, consisting as they did of a 
great variety of special grants and charters as well as 
their partial nullifications (1). 

Considering how much more beneficial it is, if an in- 
stitution has grown out of the healthy action of a people, 



sec. cxxi.] Written Constitutions. 393 

and developed itself along with the state of society, in 
other words, if an institution has its deep roots in the 
history of a nation ; and on the other hand, how lifeless 
the best sounding written constitution remains if merely 
recorded in the archives, deprived of the necessary fibres 
through which it draws aliment from the actual life of 
the people ; many persons have thought fit to deride 
the idea of written constitutions, and have declared them 
to be useless. The great power of a precedent in Eng- 
land, and the hollowness of many declarations in the 
constitutions of some newly emancipated nations afford- 
ed them a strong contrast. There are writers on poli- 
tics, indeed, who have condemned the whole idea of 
settled constitutions, asking, ' Whether a family father 
would believe that he could establish peace and harmo- 
ny in his house, by placarding at the door a series of 
regulations.' This question rests on the unfortunate 
mistake of making no difference between the family and 
the state, treated of in a previous chapter. If the family 
grows very large, occupying several houses, and yet fre- 
quently assemble, it has even then in the family been 
found serviceable to settle certain regulations and to ad- 
just the difficulties that may occur, by a family council of 
the elder members. — Rights may not only be clearly 
pronounced, but ought to be so. 

(1) For a classification of constitutions, according to the vari- 
ous principles on which they are founded, as the subject has ap- 
peared to me, see the article Constitution, in the Encyclopaedia 
Americana. The same, copied in the London Cyclopaedia. 

CXXI. Those who dream of patriarchal, paternal, or 
whatever other relations of the kind, between the gov- 
ernment and the governed, in a nation at all advanced, 

vol. i. 50 



394 The State. [book ii. 

claiming absolute power on the ground of natural love, 
which ought to exist between the prince and the subject, 
object to constitutions, as a matter of course. Ferdi- 
nand VII, of Spain, was told that God had made him 
father of his country (his mother lived in continued adul- 
tery), and that it was rising against God, to attempt to 
deprive him of unlimited power to do good. The abject 
flattery of many courtiers, judges, and most officers in 
high authority under Elizabeth and James, was equally, 
sometimes still more blasphemous. 

It will appear from the whole view of the state, and 
the relations of the individual to it, which has been taken 
in this work, that constitutions are indispensable. They 
will invariably be established, or naturally grow up with 
the progress of political civilisation. For they are nothing 
more than the distinct acknowledgment and clear ex- 
pression of certain principles deemed fundamentally and 
essentially important to the well-being of society, and 
the due protection of the citizen ; the higher the de- 
gree of civilisation, the greater the clearness. Civilisa- 
tion invariably tends toward the clearer development of 
principles, in politics, as well as in any other branch. 

Written constitutions are desirable for the following 
reasons : 

1. Where the political life of a people has been un- 
propitious for the foundation and growth of civil insti- 
tutions, they are frequently the only possible starting 
point, and however slow, superficial or deficient their 
action may be for a long time, still they form often the 
first available means to give civic dignity and political 
consciousness to a people, as well as the beginning of 
distinct delineation of power. The French have had 
many constitutions, indeed, within the last fifty years ; 



sec. cxxi.] Written Constitutions. 395 

but similar phenomena will appear in other spheres. 
Talleyrand has sworn allegiance to a great many gov- 
ernments ; Cranmer recanted about six times. Not, 
indeed, that I consider the latter as natural or excusable 
as the former. What had Talleyrand, or any French- 
man, to do, if the government of the country is changed 1 

2. Constitutions form, in times of political apathy, if 
not too great, a passage, a bridge, to pass over to better 
times. When civic consciousness is too weak, and pa- 
triotism too low to repel encroachments by their own ac- 
tion, they are still sometimes sufficient to do so with the 
aid of a well-settled and clearly pronounced constitution. 

3. It gives a strong feeling of right, and a powerful 
impulse of action, to have the written law clearly on 
one's side, and though power, if it comes to the last, 
will disregard the written law as well as the customary, 
yet it must come to the last before it dares to pass the 
Rubicon and to declare revolution. Many a time has 
power been checked by the appalling consciousness : 
thou art going to break the fundamental law, the estab- 
lished law of thy land ; into thy hands it was confided, 
and thou becomest its assassin? (1) 

4. It is our duty to define things as clearly as we possi- 
bly can in matters of a jural character. Confusion is the 
very opposite to right, (diafiolog from diafialluv). 

(1) The French revolution of 1839 affords a remarkable in- 
stance. For years, the government were afraid to take certain 
steps, because they knew it was against the written contract, and 
when they finally did propose a gross violation of the charter, or 
rather its abolition, the consciousness of the people, that it was 
prince Polignac with the whole court party and ministry, not 
themselves, who were breaking the great pact, gave them an en- 
ergy and buoyant vigor, without which the revolution could not 
have been effected, or, if it could, certainly not so rapidly. 



396 The State. [book ii. 

There was a great degree of civil alacrity in that event. Nor 
would this powerful change have been immediately acknowledged 
by nearly all Europe. The so-called legitimate governments knew 
very well who had been the aggressor. 

CXXII. Constitutions, however, are valueless without 
public spirit ; it is a serious error to believe that liberty 
can be made — can be decreed on parchment. This 
has been frequently used by absolutists as an argu- 
ment against constitutions altogether. It is however no 
stronger an argument against them, than against any- 
thing written in this world, whether it relate to religion, 
science or law. There is not a written law, which may 
not at times, and if the judges have the mind so to do, 
be stretched and distorted. When the spirit is gone, 
the letter is vapid. But it cannot be denied, that the 
mere fact of distinctly pronouncing a certain principle in 
writing, can do much. Nor do we forestall, by written 
constitutions, the necessary development of institutions ; 
for as society is never stationary, so its political organi- 
sation cannot be. I have dwelt on this latter, important 
subject in the Hermeneutics. 

Inasmuch, then, as right and law depend, in a great 
measure, upon distinctness (this may be traced in the 
history of politics or law, in any tribe whatsoever), and 
as constitutions contribute to give this distinctness, as 
well as to lead the people gradually to greater clearness ; 
and inasmuch as all confusion in politics has a necessary 
tendency to abuse and tyranny, and written constitu- 
tions define the spheres of action of the various branches 
of government, written constitutions are beneficial ; and 
for those nations, with whom the historical development 
has not been such as to lead them to a gradual and 
clearly acknowledged growth of fundamental political 



sec. cxxnr.] Written Constitutions. 397 

principles, for instance, the nations of Spanish origin, in 
America, they are necessary. But they remain means, 
and we must beware of what has been called, in an- 
other part of the work, idolatry of the constitution ; for 
it is the living nation, the life of society, which is the 
object of the state, and therefore of the constitution 
likewise. 

CXXIII. A most effective means to prevent the natural 
expansion of power has been sought for in the division 
of power, which is, perhaps, not a very happy expression. 
The general, and certainly the most important division 
is, as is well known, into the legislative, executive, and 
judiciary, though this is not the only one. In Brazil 
there are four branches. The first French constitutions 
speak of the administrative branch, as distinguished 
from the executive and legislative, and meaning the 
administration of the communes, &c. 

It is not unfrequently believed that this idea of the 
division of power is owing to Locke ; more generally, 
Montesquieu is considered as the author who first set- 
tled it well. Aristotle, however, (Pol. IV, 14— -16) 
makes already this division, though I grant, that in 
modern times only this great principle has fairly gone 
into operation. 

That a clear division of these authorities must neces- 
sarily retard, at least, the increase of power, is evident. 
It is for the science of politics proper to show the 
natural foundation of this division as well as the vast 
advantage flowing from it ; and that it is a most pow- 
erful guaranty of civil liberty, especially if united with 
certain others; whatever opinion to the contrary may 
have become fashionable of late with a certain mystic 



398 The State. [book ii. 

school who ridicule the division of power, asking, where 
we find it in nature, and whether the small states, in 
which no proper division exists, are not some of the 
happiest. 

If the state is a jural institution, nothing can be more 
evident than that a clear division of the government 
functions must aid in protecting the members of the 
state. It is objected that the branches were divided in 
the first French revolution, and yet what tyranny! 
But the true answer is, they were not divided ; on the 
contrary, the French so-called republic was always 
materially a concentrated government. Absolute power 
had passed from the crown to the assembly, the com- 
mittee of public welfare, &c. Besides there existed, 
in other respects, the greatest political confusion, which 
is always tyranny, or soon leads to it. The people, that 
is, some of them in Paris, resolved, demanded, dictated, 
besieged the legislative hall or appeared in a threaten- 
ing attitude at the bar of the assembly. That citizens 
have the right to petition is clear, that they may recom- 
mend certain citizens for certain places is equally clear, 
though it would be certainly a safe principle that only 
private recommendations ought to be given ; but organ- 
ised party meetings, recommending not one citizen but 
the entire personnel within a certain district at the 
change of an administration, borders certainly very 
closely on political confusion, for it is not the people 
that make this selection. Even if the people of the 
whole district were unanimous, they would be but a 
very limited part of the whole. In reality, however, it 
is only the district portion of the party in power that 
assume this appointment, of general interest. I call it 
appointment, for we well know that recommendations 



sec. cxxiii.] Division of Power, 399 

of such an organised sort go in their character much 
farther than simple petitions. Once more, confusion 
of branches, powers and spheres of action, are certain 
to lead to despotism. From the long accounts con- 
tained in the papers of a meeting held on March 7th, 
1837 in Philadelphia, in consequence of which a long 
list of candidates for various offices was recommended 
to the new president, it seems that it was of the kind 
mentioned. (See Niles's Weekly Register, Baltimore, 
March 18, 1837). 

We farther hear that in despite of all so-called division 
of power, the executive will, if strong enough, seizes 
upon the others, and how can they resist, since the 
executive has the actual power — the army and navy, 
the money and the distribution of honor ? In this ob- 
jection, started very frequently by a writer who in his 
wishes belongs to the liberal portion of mankind, there 
are two mistakes : 

1. Power does not only consist in the army, navy, and 
money ; public opinion, which is gained by nothing so 
firmly as by a continued, even and just administration of 
justice, and which has been frequently obtained by this 
alone, despite of the glaring corruption of the other 
branches, is power indeed. The army and navy must first 
be gained. Though the executive may have the supreme 
command over them, it does not rule them like machines. 

2. It is wrong to argue that because, in times of 
extremity, one power may not be able to withstand 
another, therefore it is of no use. The division of 
power may prevent, and often has prevented, this very 
extremity. It is the same here as with constitutions : 
are they never worth anything because, in times of 
extremity, he who has the army will tear the charter 



400 The State. [book tf. 

and dictate a new one if he thinks proper — that is, if 
the current of events and of ideas of his party make it 
advisable ? 

CXXIV. The separation of the executive from the 
legislative is highly important for the simple reasons, 
that, if united, power will decree laws to increase power, 
and specified laws or decrees will be made in specific 
cases, according to convenience. Few things, how- 
ever, are more necessary in a well regulated commu- 
nity than that laws be general rules and not fickle, not 
vulgar, as Bacon calls them in his history of Henry VII. 
Even unsuitable laws lose very frequently part of their 
evil tendency, by being acknowledged and not changea- 
ble according to single cases. Nothing, however, is of 
so vital importance, of so momentous influence, as the 
independence of the judiciary, which has already been 
briefly touched upon. It is at once the noblest and 
most conciliatory principle in the state. It forms the 
choicest subject for the lover of civil history. By the 
independence of the judiciary is not meant separation 
from the rest of the state. The Turkish hakim or cadi 
is simply judge according to the written law, and 
always separate from the sabit, the executive officer, 
throughout the Turkish empire (1). The hakim, how- 
ever, is an arbitrary judge, as long as the interest of the 
pasha or sultan is not involved ; and, on the other hand, 
the Turk is not protected against being put out of the 
pale of the law, and dealt with according to entirely 
different interests or principles. 

Vagueness in the use of terms has done its mischief 
in the discussions on this subject. If independence is 
claimed for the judiciary by some, others, not unfre- 



sec. cxxiv.] Independence of the Judiciary, 401 

quently, understand it as if arbitrary power in the judges 
were meant, while, on the contrary, we, the advocates 
of an independent judiciary, desire the individuals who 
may happen to be judges, to be the very serfs of the 
law, but of the law alone — its organs, its proclaim- 
ed. And why ? Because the law is the only rule 
given for the regulation of the actions of the citizens, 
or, it ought to be the only rule ; because the law is the 
principle, and where this has not superior sway, the 
accidental individuality of the person in authority must 
take its place, and there is an end of justice, of a strict 
government of law, of right — an abandonment of that 
principle on which we have ascertained the state to 
be truly and verily founded. The law, as I said, is 
a general rule, a principle ; it remains something ab- 
stract, until brought home to practical life, to the cases 
of reality, and when brought home, those who do so, 
those who fix and link the generality of the law to the 
individual case, ought to be placed in the best possible 
manner which human wisdom can devise for the unbi- 
ased application of the abstract rule to the practical 
case. It is not only that true justice be done according 
to the merits of each case, which makes this bringing 
home of the law to every one so important ; liberty in 
its deepest meaning, individual and national, depends 
greatly upon it. Lord Strafford, the lofty absolutist 
and penetrating statesman, mentions in one of his first 
despatches after his arrival in Ireland, to Cooke, that 
one of the greatest restraints of his predecessor, lord 
Falkland, had been, that he could not meddle in causes 
betwixt party and party, ' which certainly did lessen his 
power extremely.' Strafford adds, ' yet how well this 
suits with monarchy, when they (the lawyers) monopo- 

VOL. I. 51 



402 The State. [book it. 

lise all to be governed by their year-books, you in 
England have a costly experience ; and I am sure his 
majesty's absolute power is not weaker in this king- 
dom, where hitherto the deputy and council-board have 
had a stroke with them.' Strafford saw right. Destroy 
the bulwark of the law (and you do destroy it as soon 
as you destroy the independence of the judiciary), and 
the mighty sea of power will soon break in upon the 
people. 

By the independence of the judiciary is meant a 
judiciary, that in the administration of justice cannot 
be influenced or overawed by any one, or anything, 
neither by monarch, president, people or populace, but 
which is strictly dependent upon the law, and the spirit 
which made it, so that no citizen who ought to be 
judged by it, can be rent from it, nor can be judged or 
punished without judgment by the same, nor otherwise 
be injured in any w T ay, by the protection of the laws be- 
ing withheld from him. The more deeply and earnestly 
we study history, the more sacred will appear this won- 
derful institution of an independent judiciary. 

The English or American judge is not severed from, 
but closely united, to the state. He stands under the 
law, he moves within the law, his authority, yielded to 
him by the people, is only given to him as the minister 
and applyer of the abstract law, the principle ; he does 
not make the principle ; he is a member of a vast 
church, the church of the law ; he is not the arbitrary 
hakim, but a priest of justice, according to the rules of the 
people. (As to the necessity of interpretation in ap- 
plying it in many cases, see Hermeneutics). He stands 
under the public press and public opinion ; he does 
not settle the question of fact, and finally he owes his 



sec. cxxv.] Independence of the Judiciary. 403 

position as a judge to the gradual constitutional deve- 
lopment of the whole nation. 

(J) Von Hammer, Polit. Constitution and Administration of the 
Osmanic Empire, Vol. II, page 388, in German. 

CXXV. By an independent judiciary the citizen 
stands in each individual case, when the law comes 
home to him, under the constitutional protection of the 
judiciary ; by the independence of the judiciary alone, 
the American judge can assume that elevated function 
of declaring a law, when it finally strikes an individual, 
to be unconstitutional, a principle of which the ancients 
knew very little, we may say nothing, if compared in its 
practical use to modern times. By the independence 
of the judiciary alone, an independent development of 
the law according to the genius of the people and the 
essential wants of the times, becomes possible. With- 
out it, the best intended and most liberally conceived 
institutions and political organisms will always become 
what a distinguished French jurist said in 1818, of the 
administration of justice and the constitution of his 
country : ' We have contented ourselves to place a 
magnificent frontispiece before the ruins of despotism ; 
a deceiving monument whose aspect seduces, but which 
makes one freeze with horror when entered ! Under 
liberal appearances, with pompous words of juries, pub- 
lic debates, judicial independence, individual liberty, 
we are slowly led to the abuse of all these things and 
the disregard of all rights : an iron rod is used with us 
instead of the staff of justice ' (1). 

The necessary independence does not only mean 
independence of judges upon executive influence, it 



404 The State, [book ii. 

likewise means and demands the division of functions, 
already spoken of. For if the courts ought to be inde- 
pendent, and they are not strictly separate from legisla- 
tive or administrative functions, they form bodies, such 
as the ancient French parliaments were, which fre- 
quently, indeed, were of service to the people, consid- 
ering the whole confused state of government, but which 
cannot be tolerated in a well-regulated state, in which 
the various spheres of political action have been care- 
fully defined. The courts in other states were fre- 
quently charged with the collection of taxes and other 
administrative business. This likewise, is opposed to 
the idea of judicial independence, which, I repeat, is 
nothing but another term for the independence of the 
law, a means to insure the truth of the law, that is, that 
the law be law. 

No human wisdom can devise any plan which has 
not its inconveniences. The independence of the ju- 
diciary requires that the impeachment of judges should 
not be made a trifling affair, dependent upon moment- 
ary impulses. This, questionless, leads in some cases 
to considerable inconveniences. But all the evils re- 
sulting from the independence of the judiciary, are 
trifling indeed compared to the one great advantage — 
the government of law, and expulsion of the govern- 
ment of human individuality, which alone can be insured 
by the independence of the judiciary. Means may be 
found to insure the one without compromising other 
interests. We all know that the infirmities of old age, 
in the natural course of things, impair the energies of 
the mind. There may then be good reason why a cer- 
tain age should be fixed beyond which no judge should 
sit on the bench, though the age of sixty years, as it is 



sec. cxxv.] Independence of the Judiciary. 405 

adopted by the constitution of New York, as the maxi- 
mum—the age when the Spartans considered their 
citizens only matured for their high council, the gerusia, 
appears certainly too limited. A statistical table of 
all the most eminent judges in England and America, 
with their age, would incontrovertibly prove it. From 
a calculation I have made, though I own, it has not 
been made on a scale so extensive as to be entirely 
satisfactory to myself, I should be inclined to say, that 
seventy years would be a safer maximum age to be 
allowed to the official age of a judge. Still no max- 
imum age is infinitely better than appointments for a 
brief term, and upon the whole, I believe, that the fixing 
of a minimum age for a judge would be more import- 
ant than that of a maximum. Bold action belongs to 
the younger age, from twenty-five to forty ; wise coun- 
sel and unbiased calmness to the riper years. The 
papal hierarchy, it strikes me, has never had occasion 
to regret the advanced age of most popes, so far as the 
wisdom of their counsel is concerned. 

An independent judiciary is likewise an institution 
which will regularly develop itself with the progress 
of political civilisation. The patriarch is father, judge, 
priest, ruler — everything that implies authority. The 
king in early times holds his courts in person, nay, 
it is his highest attribute, and justly so for those early 
periods, because the monarch is mistaken for the state, 
and justice is its essential. David sat in the gate 
and dealt out justice, and St. Louis and Louis XII 
administered justice under an oak tree. The German 
emperors travelled from place to place to hold courts : 
principes, qui jura per pagos reddunt. Now it is con- 
sidered daring and high-handed interposition if the 



406 The State. [book m 

monarch interferes with the administration of justice in 
single cases, even in theoretically absolute monarchies. 
The history of the administration of justice in England 
shows the same progress. The king's personal admin- 
istration became rarer and rarer, and George III con- 
summated one period in the history of this important 
subject by declaring, in the beginning of his reign, 'that 
he looked upon the independence and uprightness of 
the judges, as essential to the imperial administration 
of justice ; as one of the best securities of the rights 
and liberties of his subjects ; and as most conducive to 
the honor of the crown.' As to the power of the Brit- 
ish judge to declare a law unconstitutional, it is held by 
many that he does not possess it. See Dwarris on 
Statutes, beginning of 2d vol. Lord Holt however did 
it, and what is the judge to do if one law contends with 
another, and this other be, for instance, the declaration 
of rights 1 Can he possibly do anything else but de- 
clare the minor law to be second to the other, the 
fundamental one 1 (See Hermeneutics). 

(1) Berenger, de la Justice criminelle de France: Paris, 1818, 
p. 2 — a work deserving decided attention. 

CXXVI. The more precise division of the functions 
of government on the one hand, and its increasing 
wants on the other, have raised, in modern times, a 
peculiar check of public power to the highest practical 
importance, and made of it at the same time, the re- 
conciliatory principle in cases of conflict between the 
legislature and monarchical executive. In former times, 
when the monarch was a rich nobleman, with vast do- 
mains appertaining to his house, he, frequently, could 
carry on the government, such as it was, without much 



sec. cxxvi.] Constitutional Supplies. 407 

pecuniary assistance from the people. If they gave it, 
however, it was always by way of grant. Powerful 
changes took place in the course of time; the wants 
of governments became greater in the same degree as 
they changed from feudal governments into national 
ones ; domains were alienated, wars became vaster ; in 
fine, monarchs could not carry on the government with 
their private or crown revenues ; they were obliged to 
ask for it at the hands of those who had it. Some 
manly nations, most especially however the Dutch and 
the British, gradually did not only allow of no taxation 
without the consent of the tax-payer, or his real or ima- 
gined representative, but they made frequently the grant 
of money, on their part, dependent upon grants of privi- 
leges, charters, or political freedom, on the part of the 
receiver. At length the principle became distinctly ac- 
knowledged and solemnly settled with the English, that 
no taxation is lawful except it be granted by act of 
parliament. Other nations have neglected this. * The 
Castilian commons, by neglecting to make their money 
grants depend on correspondent concessions from the 
crown, relinquished that powerful check on its opera- 
tions, so beneficially exerted in the British parliament, 
but in vain contended for even there, till a much later 
period than that now under consideration ■ (1). 

As the British executive can, of course, do nothing 
without money, and as the money may be refused by 
the commons, the latter have obtained an effectual 
check upon the former. The same is the case in 
France, and all truly liberal states in Europe. Hence 
the immense importance which the word supplies has 
acquired within the last century. The commons have 
no right to change ministers, whom the monarch ap- 



408 The State, [book ii. 

points, but if the commons refuse supply, the mon- 
arch must change the ministry ; otherwise, government 
must stop, and a revolution would follow. And thus it 
ought to be ; if there be disagreement, who else but 
the people shall decide virtually and effectually 1 Who 
else can finally decide ? For a history of this check, 
one of the most interesting features of modern civil 
history, I must refer to the best English and French 
histories, and the history of the various European states 
in the middle ages. The second part of this work will 
offer an opportunity of discussing the subject, when a 
citizen ought conscientiously to vote against supplies, 
with the intention of embarrassing the existing admin- 
istration, so that a change may be produced. 

(1) Prescott, History of Ferdinand and Isabella, 2d ed. Bos- 
ton, 1838, p. xlix., Introduction. 



(409) 



CHAPTER XII. 



Classification of Greek Constitutions by Aristotle.— Classification of Gov- 
ernments, according to the Number of those who hold the Supreme 
Power. — Polity. Meaning in which it is used in the present Work. — 
Autarchic and Hamacratic Polities. Autarchy, Hamarchy.— Abso- 
lutism. Democratic Absolutism. — Different Operation in the Au- 
tarchy and Hamarchy. — Hamarchy materially republican in its Char- 
acter. — The Polity of England is a Hamarchy. — The Polity of the 
United States likewise. — Hamacratic Character of the City of Rome. — 
Hamarchy rises with the Teutonic Race. — Anglican Hamarchy. 



CXXVII. Aristotle says, that the political consti- 
tutions in Greece had followed in this order : monarchy, 
aristocracy, oligarchy, tyrannis, democracy. The same 
great philosopher gives other divisions upon different 
principles, and we find mentioned in ancient times, 
among others, plutocracies, or states in which riches 
form the foundation of supreme power. Aristotle was 
the first, I believe, who made a distinction between the 
state constitution and the government. It is an import- 
ant distinction, not even always properly kept in view 
by modern political writers, when they speak of the 
different ' forms of government.' Important as these 
forms are, according to the number of those who hold 
the supreme power, and although they constitute a 
prominent department of the science of politics, whose 
office it is to inquire into their advantages and disad- 
vantages, under certain given circumstances, still the es- 
sence or principle is more important than the form. A 

vol. i. 52 



410 The State. [book 11. 

republic, as to form, may be cruelly oppressive; a heredi- 
tary monarchy may protect the individual, and leave a 
healthful action in most directions to the community. 
Aristocracies may be nothing more than a combination of 
despots far more oppressive than absolute monarchs, or 
the people may love the aristocracy they live under, as 
was the case with the subjects of Venice, when those 
of their number who lived on the continent, voluntarily, 
and at the peril of losing their all, defended and saved the 
republic in 1509, against the pope, the German emperor, 
and the kings of Spain and France, united by the league 
of Cambray. The noble Bayard, who fought against 
them, said, the subjects of Venice are faithful to their 
government to an unsurpassed degree, ' for never have 
masters on earth been more beloved by their inferiors 
for the great justice, which they always show them ' (1). 
There was a variety of governments around them, yet 
they seem to have had occasion to be satisfied even with 
an aristocracy, and a high-handed one too. It is often 
asserted, with what precise degree of truth I cannot say, 
that the aristocratic government of the canton of Bern 
is very popular. 

(1) Bayard, xv. 76. 

CXXVIII. For our purpose it is necessary to direct, 
then, our attention to a different subject from that of the 
individual or body of individuals in whose hands the 
supreme power may rest. I shall consider chiefly of 
what character the power is, and in what mode govern- 
ment operates. Let us call the latter the polity of a 
state. I do not believe that I do violence to the Eng- 
lish language, if I use the term polity in this more defi- 
nite meaning, nor do I deviate too much from the sense 



sec. cxxviii.] Autarchy and Hamarchy. 411 

of the original word; for nohrela signifies, first, the 
relation of the free citizen to his state ; and that this is 
dependent upon, and closely connected, in fact, in cer- 
tain respects the same, with the organic operation of the 
state, will appear immediately. I divide, then, for our 
purpose, all states, according to their polity, into autar- 
chies and hamarchies (from aaa, at the same time, joint- 
ly, cooperatingly, and aqzew, to rule). 

I call autarchy that state in which public power, whole 
and entire, unmitigated and unmodified, rests some- 
where, be this in the hands of a monarch, or the people, 
or an aristocracy, it matters not for our division. Pro- 
vided there be absolute power, or absolutism, a power 
which dictates and executes, which is direct and posi- 
tive, we call the polity an autarchy. As the word au- 
tocracy has already its distinct meaning, namely, that of 
absolute monarchy, I was obliged to resort to another, 
which would comprehend the absolute monarchy as 
well as absolute democracy or aristocracy. The demo- 
cratic autarchy stands, therefore, in the same relation to 
a democracy in general, as the absolute monarchy or 
autocracy stands to monarchy in general. 

Hamarchy, on the other hand, is that polity, which 
has an organism, an organic life, if I may say so, in 
which a thousand distinct parts have their independent 
action, yet are by the general organism united into one 
whole, into one living system. Autarchy acts by 
power and force ; hamarchy acts and produces as 
organised life does ; in the autarchy laws are made by 
the power ; in the hamarchy they are rather generated ; 
in the autarchy the law is absolute, after it has been 
made ; in the hamarchy the law modifies itself in its 
application and operation. The political organism may 



412 The State. [book it. 

prevent its action entirely, not by force, but simply be- 
cause it cannot operate. In the autarchy the law is the 
positive will of power ; in the hamarchy it is much more 
the expression of the whole after a thousand modifica- 
tions. Hamacratic polities rest materially on mutuality ; 
autarchy on direct power. The principle of autarchy is 
sacrifice ; the principle of hamarchy is compromise. 
Blackstone had in mind what I call hamarchy, when 
he said, ' every branch of our civil polity supports and 
is supported, regulates and is regulated by the rest.' 
It is not the 'balance of power' which makes the 
hamarchy, but the generation of power. A hamarchy 
cannot be compared to a pyramid, or to concentric 
circles, or to a clock-work, but only to the living 
animal body, in which numerous systems act and pro- 
duce independently in their way, and yet all functions 
unite in effecting that which is called life. If ever 
there was a republic of action it is the animal body, 
and it is therefore the true picture of hamarchy; for 
from what has been stated, it will be evident that 
hamarchy is materially republican, and though the 
form of government may be a monarchy, that is, though 
one individual may have nominally the supreme power, 
though the supreme power may be called the crown, 
though an individual shall be designated by birth to fill 
the place on the throne, that it be filled, yet that, which 
makes the polity of that state a hamarchy, is republican in 
its character, as I believe it cannot be denied to be the 
case in England, nor do jealous royalists consider it in 
any other light. On the other hand, that government 
mechanism which is called significantly, if not classically, 
bureaucracy, is decidedly autarchic in its character. 
It has been a great mistake to consider the law mak- 



sec. cxxix.] Jlutarchy and Hamarchy. 413 

ing only— which in fact means the law pronouncing — 
of importance ; but the process in which laws are gene- 
rated, and when pronounced, their mode of operation, 
are equally important. Autarchies oppress, if perse- 
vered in and applied to extensive territories, for the 
same reason that so-called universal monarchies have a 
ruinous effect (1). 

The dead weight of power oppresses, takes away 
from each minor activity its peculiar and characteristic 
function and, though it may effect some specific aston- 
ishing effect, it saps the life — it may raise pyramids, 
but it cannot produce healthy, happy cottages. 

(1) Ancillon Tableau des Revolutions du Systeme politique de 
1'Europe, Part I, Tom I, p. 68 : " A universal monarchy would be 
without doubt a great evil for the world, and the more an empire 
approaches to it, the more must the friend of mankind wish that 
it stop in its progress. A universal monarchy would neces- 
sarily cause the oppression of the various nations and the most 
crying abuse of power would be inseparable from the exercise 
of power; the force of circumstances would establish an orien- 
tal despotism without limit, without measure, without refuge; it 
would prevent the development of nations, for emulation, rivalry, 
jealousy and mutual fears are the means of perfection and the 
springs of activity for nations as well as individuals. At length it 
would bring down everything to the same measure; under the 
level of uniformity would disappear this happy variety of thoughts 
and sentiments, of talents and tastes, of habits and actions, which 
is at the same time effect and cause of the progress of life, and 
together with the national existence would vanish the physiognomy 
and the individuality of all nations." Mr. Ancillon was, at a later 
period, minister of foreign affairs to the king of Prussia. 

CXXIX. Hamarchy, then, signifies something en- 
tirely different from the ancient synarchy, which merely 
denoted a government in which the people had a share 
together with the rulers proper. Disjointedness, and 



414 The State. [book ii. 

absolute independence of the parts, in some respects, as 
the pashalics in Turkey, constitute, as it will have ap- 
peared, by no means hamarchy. A united organism is 
requisite. The polity of England, with her independent 
judiciary, independent courts, corporations, commons, 
lords, king, &c, is a hamarchy. The various United 
States with their counties, judiciary, state legislatures, 
and congress, and their thousand semi-official meetings, 
form a hamarchy. Some of the states, without the 
American union, would have little of a hamacratic char- 
acter ; the federal government, without the state legisla- 
tures and sovereignties, would probably soon lose its 
hamacratic character. 

CXXX. The independence of the parts can be carried 
much too far, as the activity of certain organs or systems 
in the body can be too intense, and disease must ensue. 
It is not the severing from the common system of life, 
that constitutes the independence requisite to hamarchy. 
The Turks were before the gates of Vienna, diet after 
diet was held in Germany, but no united effort was 
made against the fearful enemy. Germans have fought 
against Germans, until their country has been drenched 
with the blood of her sons ; yet not on account of her 
hamacratic character, but only on account of its being a 
loosely united confederacy. France, on the other hand, 
has for centuries systematically concentrated all power, 
and is now only in the process of passing from autarchy 
to hamarchy, restoring, as she does, political life to the 
various spheres out of Paris. That there are, between 
the two extremes, a multitude of shades, is clear. A 
part of a certain political system may be autarchic, and 



sec. cxxxi.] Autarchy and Hamarchy. 415 

another have assumed more of a hamacratic character. 
It depends upon the mode of operation. 

One of the most striking proofs of the hamacratic char- 
acter of the English polity is this, that her gigantic capi- 
tal, much vaster and richer than Paris, yet of a country 
much smaller and less populous than France, has at no 
period so entirely absorbed the energy of the country, or 
so absolutely influenced the distant parts, be it in fash- 
ion, social intercourse, language, literature, taste, politics, 
or whatever else, as Paris has influenced and in fact 
guided France, even though the idea of fashion is so 
powerful in England. The word province, in France 
an expression which savors of disdain, has never acquir- 
ed this meaning in England. A book is not disregarded 
in England because published in the ' province,' as it 
would be in France. Gaining or losing Paris has been 
gaining or losing France. It will not be always so in 
future. 

CXXXI. The Greeks had no clear perception of ha- 
marchy. Government, with them, strongly inclined to- 
ward autarchy, democratic, aristocratic, oligarchic or mo- 
narchic, as we shall see in the next chapter. Yet if we 
view ancient Greece as a whole, we shall find that, as such, 
she had a hamacratic character, and many of the unrivaled 
traits in her glorious civilisation are owing to this very 
fact. The Roman polity had more of a hamacratic 
character ; yet only in the city itself, and could never 
obtain a decided hamacratic character in the higher po- 
litical spheres, on account of the whole view the ancients 
took of the state ; though the Romans left a large sphere 
of free political action to the cities and provinces. The 
true germs of hamacratic polity must be sought for in 



416 The State. [book ii. 

the conquests of the Teutonic races, and the consequent 
feudal system, which indeed fluctuated long between 
barbarous anarchy or revolting lawlessness, and an aus- 
picious hamarchy. When the cities with their charters, 
the provinces with their privileges, &,c. &x., were added, 
the idea of independent action became clearer. In Eng- 
land, again, a sufficient union of the estates took place, 
not to permit anarchy, yet by happily uniting into two 
houses, and not one, or not remaining divided into three 
parts, one of the great foundations of her hamacratic 
polity was laid. The counties, &c., retained their pro- 
portionate independence, so the colonies, so almost 
everything connected with England, and thus she has 
produced what we may well call the peculiar Angli- 
can hamarchy, which has transplanted political life into 
many distant regions, and from which the seeds of 
constitutional liberty have been carried over the conti- 
nent of Europe. It is mainly the substantial principles 
of Anglican hamarchy, for which continental Europe is 
now striving and struggling. 



(417) 



CHAPTER XIII. 

Political Spirit of the Ancients.— The Ancients had not what we call 
Law of Nature. — Essential Difference between the View of the State 
taken by the Ancients and the Moderns.— Greek Meaning of Liberty. 
— Absolute Equality, even disavowing the Inequality of Talent and 
Virtue.— Protection of the Individual, first object of the Moderns ; 
the Existence of the State, of the Ancients. Hence high Impor- 
tance of Judicial Forms with the Moderns. — He who has Supreme 
Power, be it One, Many, or All, must not sit in Judgment. — Greek 
Laws often very oppressive to the Individual. — The most private 

Affairs frequently interfered with. Socrates's View of the State j 

Lavalette, Hugo Grotius, and lord John Russell, on the other hand. — 
Ostracism. — Causes of the powerful Change in the View of the State. 
— Christianity. — Conquest of Roman Empire by Teutonic Tribes. — 
Feudalism. — Increased Extent of States. — Printing. — Increased Wants 
of Government, — Taxation; Rise of Third Estate. Increased Indus- 
try. — Discovery of America. 

CXXXIL The civilisation of the ancient Greeks and 
Romans was in many respects higher than that of the 
moderns ; in others, the latter would have the advan- 
tage in the comparison; and among those things in 
which the most civilised modern nations excel the two 
gifted and noble ones of antiquity, or, perhaps, that 
subject in which we most signally and characteristically 
surpass them, is public law, or that branch of law which 
defines the relation of the individual to the state. With 
the ancients, all that an individual was, he was as a 
member of the state. The moderns, on the other hand, 
acknowledge the humanity in the individual besides his 
civility or citizenship. We speak of individual, of pri- 
mordial rights ; we consider the protection of the indi- 

VOL. L 53 



418 The State. [book ii. 

vidual as one of the chief subjects of the whole science 
of politics. The noXixr/S] iTnatrjar], or political sci- 
ence, of the ancients, does not occupy itself with the 
rights of the individual ; the ancient science of politics is 
what we would term the art of government, that is, 'the 
art of regulating the state, and the means of preserving 
and directing it' (1). The ancients start with the state, 
and deduce every relation of the individual to it from 
this first position ; the moderns acknowledge that the 
state, however important and indispensable to mankind, 
however natural, and though of absolute necessity, still 
is but a means to obtain certain objects both for the in- 
dividual, and society collectively, in which the individ- 
ual is, by his nature, bound to live. The ancients have 
not that which the moderns understand by jus naturale, 
that is, the law which flows from the individual rights of 
man as man, and serves to ascertain how, by means of 
the state, those objects are to be obtained, which jus- 
tice demands for every one. On what supreme power 
rests, what the extent and limitation of supreme power 
ought to be, according to the fundamental idea of the 
state, these questions have never occupied the ancient 
votaries of political science. 

Aristotle (2), Plato, Cicero, do not begin with this 
question. Their works are mainly occupied with the dis- 
cussion of the question, who shall govern ? The safety 
of the state is their principal problem ; the safety of the 
individual is one of our greatest. No ancient, therefore, 
doubted the extent of supreme power. If the people 
had it, no one ever hesitated in allowing absolute power 
over every one and everything. If it passed from the 
people to a few, or was usurped by one, they con- 
sidered, in many cases, the acquisition of power unlaw- 



sec. cxxxii.] Politics of the Ancients. 419 

ful, but never doubted its unlimited extent. Hence, in 
Greece and Rome the apparently inconsistent, yet in 
reality perfectly natural, sudden transitions from entirely 
or partially popular governments to absolute monarchies, 
while with the modern European states, even in the 
most absolute monarchy, there exists a certain acknow- 
ledgment of a public law, of individual rights, of the 
idea, that the state, after all, is for the protection of the 
individual, however ill-conceived the means to obtain 
this object may be. 

The idea, that the Roman people gave to themselves, 
or had a right to give to themselves, their emperors, 
was never abandoned entirely, though the soldiery arro- 
gated their election. ' We may safely infer from this, 
that the emperors themselves recognised that the Ro- 
man people had not deprived themselves of the right to 
give themselves their masters.' (Barbeyrac in the note 
ad Grot. p. 441). Or if the reader does not agree with 
me on this point, which cannot be discussed here, it is 
manifest, at least, that no legitimacy either by descent 
or divine right, or founded on a constitution, was ac- 
knowledged. Yet the moment that the emperor was 
established, no one doubted his right to absolute su- 
preme power, with whatever violence it was used. 

(1) Heeren, Sketch of the Political History of Greece, trans- 
lated ; Oxford, 1834, p. 140. 

(2) But even here we find that the gigantic mind of Aristotle 
had a glimmering of the truth far in advance of his times, when 
in his Politics III, 7 and Ethics VIII, 12, vol. 2, p. 64, A. B. Ca- 
saub. he finds the essential difference of states not in the num- 
ber of rulers, but in the object of government, whether this be 
the welfare of the whole, in which monarchy, aristocracy and 
polity are to be classed, or the interest of a few, in which he 
classes tyrannis, oligarchy and democracy. Democracy he dis- 



420 The State. [book ii. 

tinguishes from polity by this, that in the latter the most numer- 
ous class of citizens, the indigent, vote according to their separate 
interest, while in the absolute democracy, as we would call it 
now, the great number must always outvote the smaller number, 
and are led by a few. The moderns know a third — the repre- 
sentative principle. 

CXXXIII. Liberty, with the ancients, consisted ma- 
terially in the degree of participation in government, 
6 where all are in turn the ruled and the rulers.' Lib- 
erty, with the moderns, consists less in the forms of au- 
thority, which are with them but means to obtain the 
protection of the individual and the undisturbed action 
of society in its minor and larger circles. Etev&eQia, 
indeed, signifies with the Greek political writers, equal- 
ity ; that is, absolute equality, and lootrjg, equality, as 
well as ilev&EQia, are terms actually used for democ- 
racy. (Plato. Gorg. 39). It is, therefore, perfectly con- 
sistent that the ancients (see Arist. Pol.) aim at perfect 
liberty in perfect equality, not even allowing for the differ- 
ence in talent and virtue ; so that they give the rcaloa, 
the lot, as the true characteristic of democracy. This 
is striking, and has a deep meaning. They were natu- 
rally and consistently led to the lot ; in seeking liberty, 
that is the highest enjoyment and manifestation of hu- 
man reason and will, they were led to their annihilation, 
to the lot, that is, chance. Not only magistrates, but 
even generals and orators were determined by lot (1). 
Hence again the phenomenon, that many ancient phi- 
losophers discussing the question of the best govern- 
ment, make the state absorb the individual (Plato in his 
Republic), and take the Lacedaemonian constitution of 
Lycurgus as a model. The moderns on the other 
hand unite the two objects of discussion, liberty and 



sec. cxxxiii.] Liberty of the Ancients. 421 

the safety of the state, and can do so. The great pro- 
blem with them is, how the utmost possible protection 
of the individual, as an entire man, can be best united 
with the demands which society makes as such ? The 
difficulty of politics and ruling, therefore, has infinitely 
increased, and is daily increasing ; because the indi- 
vidual makes greater claims with each advance in civil- 
isation. Hermodorus in Ephesus was banished be- 
cause he was the best. The decree of the people was, 
rjfLiewv {irfit elq 6vi]iotog toico, u de tic, toiowoc, allrj 

The ancients do not discuss the rights of the indi- 
vidual ; as opposed to the state, he has none. Hence 
the immense importance which the judiciary has ac- 
quired in modern times, the certainty of the law as a 
general rule, and the minute attention paid to the fixed 
forms of its administration, so that it is considered of the 
highest consequence that no one shall be judged but by 
that tribunal, before which he belongs by law, or his natu- 
ral judges, a principle held so important, that it is inserted 
in the modern constitutions. The court of cassation 
(or quashing), the highest court of France, has nothing 
to do but to try whether in a trial any illegality of judi- 
cial form, or error of law has taken place ; and in the 
French charter, as amended in 1830, we read, 'No one 
can be deprived of his natural judges.' ? There can- 
not, in consequence, be extraordinary committees and 
tribunals created, under whatever title or denomination 
this might be.' French Charter, 53, 54 (2). 

Indeed, what are all modern constitutions but funda- 
mental laws, by which the supreme power is to be 
restricted to proper limits, and the individual rights of 
the citizen to be secured ? The judicial formalities of 



422 The State. [book ii. 

the Greeks, however, were uncertain. The people 
stepped in, according to their pleasure as in monarch- 
ical despotisms, the despot does. When the Athenians 
proceded against the commanders after the battle at 
Argenusae, the whole legal procedure was changed 
for this special case. According to the law of Canonus 
the case of every commander should have been voted 
separately ; but in this trial, the people voted on all 
commanders jointly. Some citizens remarked this dis- 
crepancy, but the crowd exclaimed ' it would be mon- 
strous if the people could not do what they like ' (3), 
precisely what Louis XIV would have exclaimed, had 
he chosen to judge a case in his palace, and the parlia- 
ment of Paris should have attempted to interfere. We 
see a similar occurrence in the trial of Socrates (4). 
It was impossible, according to the course of political 
civilisation, that antiquity should have elevated itself to 
the great idea of an independent judiciary ; nor have 
the moderns discovered the truth by abstract reasoning 
on natural law. We have been led to it by the peculiar 
political development of the European race through the 
lawless times of feudalism, and the elevated views of 
the moral character of man, raised by Christianity and 
the progress of civilisation, closely connected with in- 
creased population. Having however arrived at the 
idea, we cannot sufficiently value it, and every flatterer 
of the crowd when he wishes to persuade them that 
the people, being the masters, can do what they like, 
ought fearfully to pause and well weigh this mighty 
subject. None on earth, neither people nor monarch, 
neither all, many, few or one, have a right to do what 
they like. None, not even unanimous millions have a 
right to do what is unjust. Absolute power is not for 



sec. cxxxiv.] Ancient and Modern Liberty. 423 

frail mortal man ; it ruins those subjected to it, and blasts 
the hand that wields it. 

(1) I must refer here to Aristotle's Politics in general. Herod- 
otos 3, 80, gives the essential character of ancient democracy. It 
is isonomy and lot. See also Herodotus 3, 142 and 5, 78. On 
isocracy, as the opposite to the tyrannis, isogory and isology — 
these terms and ideas were chiefly developed at Athens, but in 
universal use in Greece — see W. Wachsmuth Hellenic Archae- 
ology (in German) vol. I, part II, page 22; on democracy in 
general, ibid. p. 18 &> seq. Plutarch in Lycurgus 24, 25, gives 
the true meaning of the Grecian state. Of great importance is 
likewise Boeckh Economy of Athens, translated from the German 
— a standard book. 

The lot was drawn in Syracuse between Thrasybulus and the 
Dionysiuses (466 — 405), Diod. XIII, 34. The orators drew the 
lot. Plutarch, Apophtegmata of Kings, Dionysius the Elder. 

(2) The charter of 1814, promulgated by Louis XVIII, when 
he ascended the throne, read thus : ' In consequence, there can- 
not be created extraordinary committees and tribunals. The ju- 
risdictions prevotahs (extraordinary courts with military officers 
among the judges, see article Prevot, Cours Prevotales in vol. x, 
of the Encycl. Americana), if their re-establishment should be 
found necessary, are not comprised under this denomination.' 

(3) Xenophon Grec. Histor. I, 7, 9 seq. In the speech against 
the Neaerce, Demosthenes, is a similar remark, that the people may 
decree against the law. 

(4) Memorab. of Socrates, I, 1, 18, IV, 4, 2. 

CXXXIV. The idea that the state is everything and 
the individual has its value only inasmuch as he is a 
member of the state, had of course a very powerful 
influence upon the security of private property and 
upon taxation. Everything could be demanded for the 
state and special taxation, like that peculiar regulation 
in Athens, called in Greek Xwcovqyia, by which single 
citizens were burdened with certain services or ex- 



424 The State. [book ii. 

penses, were but a natural consequence. It was not 
repulsive to the feeling of justice in an Athenian, to see 
a rich individual charged, according to law, with the 
expensive burden of defraying all the expenses of the 
choruses in the dramatic performances, called choregia, 
or the getting up of a public dinner of a tribe. (Boeckh 
III, 21, vol. I). 

We may be somewhat reconciled to these special 
taxations, when we consider that nearly all festivals and 
amusements of the Greeks had a religious character; 
that, according to their views, the tutelary deity would 
have been offended at the omission of these festivals, 
and, consequently, their due celebration was of public 
importance (1). Still the special charges must be 
explained on the ground I have mentioned (2). 

The ancient political philosophers do not omit to 
treat of education; on the contrary they pay much 
attention to it, but never in any other light than the 
use to be derived for the state — its preservation. They 
know of no other object of education than the political 
one, to bring up individuals fit to perpetuate the state ; 
it is their sole object. The highest object of education 
with the moderns is, as all sound works of education 
state, the development of man, the cultivation of all 
his powers, and suppression of evil in him, the develop- 
ment of all that in each individual, which he was created 
capable of being ; in short, the very highest object of 
education is the fullest and purest possible development 
of the individuality imprinted by the Maker upon each 
separate human being ; to bring forth the genuine indi- 
vidual man in his shape and character, removing all 
foreign, accidental, obnoxious adhesion, and thus, by 
raising true men, to raise true citizens for the state and 
prepare man for his final destiny. 



sec. cxxxiv.] Restraint in Ancient States. 425 

There was no subject with which the state could not 
interfere in ancient times ; for the principle was, where 
the people are the rulers and the ruled, they cannot 
harm themselves — a principle not so wrong in ancient 
times as it is, as has been previously shown, in modern. 
The ancient politician saw chiefly but the state ; the peo- 
ple, therefore, necessarily appeared to him as one mass. 
In modern times, when individual liberty is so important, 
we care little about the question whether the people 
can harm themselves, while we know that the majority 
may harm the minority ; the number, the individual. 

In Crete a certain number of youths were annually 
dismissed out of the Agele (division of youth) to be 
married (Strabo, x, 4, 20) ; to remain unmarried was 
punished in many Greek states (Pollux, iii, 48 ; viii, 
40). Marriages with women not of sufficient size, or 
for the sake of riches, were punished in Sparta (Xenoph. 
Laced. State, c. 1. Plutarch in Lycurgus, c. 15, and 
Ly sander, c. 30, and many more passages). King 
Archidamus is actually said to have been fined for 
having taken too small a wife (Plutarch in Agesilaus, c. 
2). What subject was not restricted by law in Sparta ? 
We read that women who preferred a rich man to an 
honest but poor one, or one whom they did not love at 
all, were punished (Julian, iii, 10). A youth in Sparta 
is said to have been punished for rapaciousness because 
he bought land for too low a price. (JElian Miscell. 
vix, 44). Common trades were not permitted to the 
Lacedaemonian citizen (Xenophon Laced. State, vii, 
2), which was the case in many other states. A pse- 
phisma was passed, about 400 B. C, to oblige Timo- 
theus of Miletus to use but seven instead of eleven 
chords on his lyre (Inscript. in Gronov. preface to vol. v 

vol. i. 54 



426 The State. [book m 

of Thesaurus Ant See Pausanias, iii, 12, 8), with 
thousand other instances (3). 

I do not assert that laws equally interfering with pri- 
vate concerns have not been passed in modern times ; 
we have only to look at some, enacted during the 
French revolution. Catharine of Russia did not hesi- 
tate to interfere with private rights. There are certain 
laws in Prussia and Austria founded entirely on the 
idea that the state must direct all things, that nothing 
of importance can take care of itself. According to the 
newspapers, a late Prussian decree prohibits the quot- 
ing of the price of foreign stocks, to prevent individuals 
being seduced into ruinous stock -jobbing. But we do 
not lay it down as a rule that the state is everything, 
and therefore has a natural right to guide and claim 
everything — at any rate, this is not done by those 
modern nations who are politically farthest advanced, 
and, where this interference takes place, it is done 
under the pretence of, or really for the benefit of the 
individual. Compare the freest modern states with the 
freest ancient. 

It was, therefore, consistent with the ancient views of 
the state, that Socrates declined availing himself of the 
opportunity of escape offered by his faithful disciples. 
He answered, that the state had ordered his death, and 
though wrongly, he had no right to withdraw himself 
from the law. It would be different, had he put it on the 
ground that, in order to prepare his flight, his friends had 
been obliged to bribe the jailer, and that he would not 
participate in an act wrong in itself. He does not seem 
to have put it on this ground of ethical delicacy, but sim- 
ply on politico-ethical ground. According to our views, 
all mutuality ceases as soon as the law demands my in- 



sec. cxxxiv.] Socrates. 427 

nocent life, which it is one of its main objects to protect. 
I cannot be held voluntarily to obey that law which 
seeks my innocent life, and ceases to perform the first of 
all objects of the state, without which the others cannot 
be imagined. A martyr may prefer to die, in order to 
awaken a slumbering people, or for some extra-political 
reason ; but no one will pretend to say, that a Socrates, 
in our times, would do wrong to escape. On the con- 
trary, without any other consideration, he would do 
wrong, in my opinion, not to escape, however deeply 
touching to every true heart the calm refusal of the spot- 
less and noble Socrates must ever be. 

Can general Lavalette, according to the strictest code 
of morals, be reproached for having accepted his deliv- 
erance at the hands of his devoted, intrepid and inge- 
nious wife ? (See his Memoirs). Did Hugo Grotius fail 
in the strictest duty of a citizen, because he allowed 
himself to be carried in an old box, by his wife and 
maid-servant, out of the prison where Maurice unjustly 
kept him? For whatever reasons lord John Russell 
declined to exchange clothes with lord Cavendish and 
to flee from prison, does not every one see at once how 
entirely out of place, with him, a tender regard to the 
infamous Jeffries and his faithless and infatuated king 
would have been ? Or, when catholics and protestants 
burnt one another, should not an imprisoned man, des- 
tined for the rack and the stake, have seized upon an 
opportunity of escape? Declining it, merely on the 
ground of its unlawfulness, would either be absurd, or 
a seeking of martyrdom very doubtful in its moral char- 
acter ; for the destined victim himself ought to prevent, 
as much as in him lies, the committing of such crimes in 
others, because the more crimes of the sort have been 



428 The State. [book ii. 

committed, the more difficult it becomes to return to a 
state of peace. There are many cases, even in com- 
mon, even domestic life, in which there is greater love 
shown in avoiding than even in meekly suffering, which 
not unfrequently is allied with lurking vanity. 

Suppose false witnesses have brought a sentence of 
death upon me ; ought I not, in mercy to my judges, 
escape if I can ? Would they not thank me for it, if, 
at a later period, I can prove my innocence? And 
what else is persecuting fanaticism, but a false witness 1 
Let me not be misunderstood. I am not obliged, at all 
events, to escape. If death is offered me thus, I may 
say, ' so be it, I am ready to seal my cause with my 
blood.' I simply speak of the jural point in the matter, 
and I would add that abject slavishness is a hideous 
counterfeit of manly loyalty. When Stubbe, a puritan 
lawyer, for having written a pamphlet against the 
intended marriage of queen Elizabeth, had his right 
hand cut off, he waived his hat with his left and ex- 
claimed, Long live the queen Elizabeth! and with it 
wrote, afterwards, against the catholics for lord Bur- 
leigh. He was either a man of most uncommon eleva- 
tion of mind, or the very meanest of slaves. 

(1) ' We need not therefore be astonished, when we hear that a 
city could be very seriously embarrassed by the want of sufficient 
means to celebrate its festivals with due solemnity.' Heeren, 
Sketch of Pol. Hist, of Ancient Greece, p. 172. 

(2) Boeckh, ut sup., is of great importance, for the taxation and 
the whole financial system of Athens. 

(3) I refer to F. W. Tittmann, Represent, of the Polit. Consti- 
tutions of Greece, in German, Leipzig, 1822, especially to the 
first book. The reader finds there a careful and judicious compi- 
lation of the most important passages. 



sec. cxxxv.] Ostracism. 429 

CXXX V. Connected with the ancient view of the state 
and of liberty, were the institutions of ostracism at Athens 
and Argos, and of petalism at Syracuse. It has been seen, 
that liberty and equality, equality and equal participation 
in government, were, with the ancients, but different 
terms for nearly or entirely the same things. They soon 
felt, that not only ambition and actual political power 
were dangerous to this equality, which, according to 
them, v/as the essence of liberty, but also distinction on 
other accounts, for instance, suavity, virtue, services 
performed for the state. Have we not instances in 
modern times of men becoming highly dangerous on 
account of their popularity, however well deserving they 
may have been originally ? Yet, with our representa- 
tive system and more extensive states, the danger is not 
quite so great, though great it always will remain in 
republics. ' It was not considered unjust to take from 
any one, by a temporary banishment from the city, if it 
was feared that he might become dangerous to this 
freedom, the power of doing injury.' Heeren Pol. Hist, 
of Greece, p. 155. Niebuhr, in his History of Rome, 
vol. ii. p. 404, Amer. edition, speaking of Manlius, says, 
'Thus, whether guilty or innocent, he became an ex- 
tremely dangerous person, through a misfortune for 
which there was no cure ; and matters could not fail to 
grow worse and worse. This knot might have been 
solved by ostracism.' 

Ostracism was materially a political, and not a judicial 
institution. The exostracised citizen was not punished, 
his fortune not confiscated, as was the effect of actual 
sentences of banishment for crimes ; no dishonor was 
attached to it. On the contrary, when it became dis- 
honorable, because a despicable man of the name of 



430 The State. [book ir. 

Hyperbolus had been banished by ostracism, the insti- 
tution fell into disrepute, and was considered as dis- 
graced. Banishment by ostracism was no sentence, 
because there was no accusation ; and what is more 
remarkable, there was an ostrocophory at stated periods, 
by which, from time to time, one of the most prominent 
men should be removed ; or by which it was ascertain- 
ed whether some one, not yet who, should be exostra- 
cised. There was no necessary ill-feeling toward the 
banished, connected with ostracism. 'Nothing,' says 
Heeren (ut sup. p. 155), 'can be more jealous than the 
' T love of liberty ; and, unfortunately for mankind, expe- 
rience shows too clearly that it has reason to be so' (1). 
The excessive punishments of the Greeks ought like- 
wise to be mentioned here. It is a principle in modern 
political law, that each punishment ought to have its 
justification in its proportion to the offence. The abso- 
lute despot sees nothing in the crime so punishable as 
the offence, or the daring against his law. So did the 
Greeks know little of any gradation of punishment to be 
applied to an offender against the state. Their fines 
were excessive ; confiscation of all property frequent, in 
many cases connected with death (Boeckh Econ. of 
Athens, iii. 14, and iii. 12). He who should propose to 
execute the claims upon Salamis against Megara, at the 
times of Solon (Plutarch in Solon, c. 8 ; Justinus, ii. 7, 
and others), or should use the money destined for the 
poor with regard to the theatre (Oewyixa) for any other 
purpose (Ulpian ad Demosth. i. Olynth. Speech, p. 14), 
or who should accept of a public office while he owed 
money to the people (Demosth. ag. Leptines, p. 504, 
i. 25 ; ag. Midias, p. 573, 1. 11), or if an archon was in- 
toxicated (according to the laws of Solon in Diogenes of 



sec. cxxxvi.] Christianity. 431 

Laer. i. 57) — for all these offences, and many more, 
the punishment was death. Draco punished even indo- 
lence with death. I am not disposed to ascribe this 
severity simply to the fact that democracy was absolute 
according to the ancients ; for all early punishments are 
severe, because imprisonment is little known, and it lasts 
a long time before men find out that the severity of 
punishment does not constitute its efficaciousness. Still 
no one will deny, that these excessive punishments 
show likewise the absence of a proper acknowledgment 
of rights in the individual. 

(1) Tittmann, ut sup. p. 341 & seq. gives a proper representa- 
tion of this peculiar institution. 

CXXXVI. So powerful and thorough, so overwhelm- 
ing and essential a change in some of the most element- 
ary views of the civilised nations, has been produced by 
various causes of vast extent, of which I shall be able 
to touch briefly on a few only. 

Among the most active causes, which wrought this 
great change in European civilisation, I conceive to be 
these : 

Christianity. 

The conquest of the Roman empire by fresh tribes, 
w T hich came from the north, and being rude, with a keen 
feeling of individual independence and endowed with 
high capabilities, caused the system of feudalism * to 
spring up. 

The increased extent of states and denseness of pop- 
ulation, not only of cities, but of the countries at large. 

Printing. 



432 The State. [book ii. 

The increased wants of governments, the consequent 
increased value of money for them, the consequent in- 
creased importance of the tax-payer, the consequent 
increased importance of industry. Union of science 
and industry. 

Discovery of America. 

CXXXVII. 1. Christianity. It may sound surpris- 
ing that that religion, the founder of which did not only 
declare that his kingdom was not of this world, but 
who, it seems, carefully avoided any discussion which 
might lead to political subjects (1), should nevertheless 
have had so powerful an effect on politics as I ascribe 
to it. It is, however, the very action of Christ's declara- 
tion that his kingdom is not of this world, upon so 
peculiar a state of things as that which existed, when 
his religion began to be preached over Europe, that 
produced this political change. 

Around the Mediterranean we find in antiquity num- 
berless small states, which have each a peculiar character, 
not only in a political point of view, but also in regard 
to religion. ' The ideas of God and divine things had, 
we might say, localised themselves ' (2). The religions 
of all these separate states or autonomies are intimately 
interwoven with their political law. Relationship of 
tribes formed the only and yet a, loose tie between 
some of them. Rome rose, and steadily conquered 
state after state. Their political law was concentrated 
in Rome, and the various religions necessarily followed 
thither. But what were these religions when rent from 
their native soil ? The worship of Isis had a meaning 
in Egypt ; powers of nature, as they manifested them- 
selves in that country, were revered and worshiped 



sec. cxxxvu.] Christianity. 433 

in her; in Rome it became an idolatry without any 
other sense, than that it was a sign and evidence of 
the victorious eagle of the city. All the various mytho- 
logies brought together into one place could not but 
contend with and neutralise one another. Rome de- 
stroyed the various nationalities and men began to sus- 
pect a communion with each other, that there is some- 
thing, in all men, which might be a bond, beyond the 
mere relation of the citizen to his state. It was the 
first dawn of a most glorious truth. 

At this moment appeared Jesus ; a religion was 
preached which gave to monotheism, until then a na- 
tional worship of the Hebrews, a cosmopolitic character. 
All men can become christians, all are called upon to 
become such. The founder of this faith had abstained 
not only from touching upon politics in general, but 
from any question which does not directly belong to 
religion and morality, or is not most closely connected 
with either. Neither science, nor industry, nor law, 
whether civil or penal, nor the principles which govern 
the physical well-being of nations, the exchange of their 
labor, in a word, what we treat of in political economy, 
nor nature, literature or poetry, nor metaphysics proper, 
except in as far as they are connected with questions 
of religion, for instance the immortality of the soul, 
are ever touched by him. Not even the soothing and 
elevating admiration of God's creation is made a sub- 
ject of his instruction, perhaps as too much depending 
upon climate, national development and a degree of 
civilisation. Nothing in what he has taught or ordained 
can be an obstacle in the way of his religion being 
received at once by all nations and all classes of 
society ; the lowliest slave may embrace it as well as 

vol. i. 55 



434 The State. [book ii. 

the mightiest magistrate. And what does this religion 
teach ? Among other things, that a benignant deity, 
ready to forgive the sincere penitent, is not to be pro- 
pitiated by any outward or inward things, except by 
purity of soul, and that there is a life beyond this present 
one, an infinite life beyond this finite one, the peculiar 
character of which will greatly depend upon the purity 
or impurity of the life this side the grave ; and not upon 
birth, not upon fortune, not upon caste or color. A 
spiritual God, not attached to any nationality, is preached 
to all men, whatever language they may speak, what- 
ever country they inhabit — a father to all men. 

The moral value of the individual became thus immea- 
surably raised. Every one is declared to have a moral 
being of his own, with high responsibilities, to answer 
for hereafter ; no one will find favor before the high 
judge, on the ground that he was born in a certain coun- 
try or descended of a certain class. A God has been 
proclaimed to be the God of all men, high or low, dis- 
tant or near ; a God before whom all are equal. The 
state could no longer remain all and everything ; a ter- 
ritory had been discovered beyond the state ; man is 
something, and something important, besides his being 
a citizen ; he is a man for himself, a moral agent, called 
upon by the Almighty himself, not any longer imagined 
with any national attribute, to fulfil his duties and to re- 
ceive his reward according to his deeds. The farther 
this religion extends, the more its preachers insist that 
no language, no political limits are boundaries for 
christians as members of their one great church. Ter- 
tullian says : ' At enim nobis ab omni gloriae et dignita- 
tis ardore frigentibus nulla est necessitas coetus, nee 
ulla magis res aliena, quam publica. Unam omnium 



sec. cxxxvu.] Christianity, 435 

rempublicam agnoscimus, mundum.' (Apologeticus, 
xxxviii, page 117 of the Apolog. in edit. Venet. 1744). 
* Nothing is farther from us than the state. We ac- 
knowledge but one state — the world.' 

The power of all states had concentrated in Rome ; 
the many national religions had neutralised each other. 
There was but one power which seemed real and in- 
dependent — the emperor. Temples were erected in 
honor of him; sacrifices were brought to him ; oaths 
were taken by his name ; his statues offered an asylum. 
The worship of the emperor was often the most zealous 
and fervent. (Tertull. Apolog. c. xxviii.) Here then 
was no national or state religion, but power and religion 
were actually one. It is a transitory state of things 
which fills with the deepest awe. In sacrificing to the 
imperator, man lowered himself to the deepest slavery. 
The national religious fervor was extinguished, the 
inspiring poetry of religion was destroyed ; it was dei- 
fication of power, indeed; the apotheosis of might. 
But now Christianity rose ; it calls upon men as moral 
beings, to the lowest of whom its founder lowered him- 
self; it appeared 'like a morning of a new 7 day.' The 
apsis of the basilica contained an Augusteum ; the stat- 
ues of the Cesars were divinely worshiped ; but now 
they were exchanged for pictures of Christ and his 
apostles (3). It is not my task to depict here, how 
that religion, which had fled to the catacombs, stepped 
finally forth victorious into the open day, until we see 
the monogramm of Christ in the labarum of Constan- 
tine. Wherever it spread and however soon the peace- 
ful message of Christ was turned into a blood-stained 
law of persecution, yet the individual moral value of 
man was acknowledged, and something beyond the 



436 The State. [book ii. 

state, higher than its supreme power, was preached, so 
that the state became the means to obtain something 
still higher. What a difference, when we find the 
greatest philosopher of antiquity proving, as he thinks 
he does, that the barbarians (foreigners), are made to 
obey, to be the slaves of the gifted Greek race, and, on 
the other hand, pope Gregory the Great, in the 6th cen- 
tury, referring to the natural law of original liberty, ordered 
the manumission of the bond, and a priest recommends 
to Louis the Pious, the giving of alms and manumission 
of bondsmen as works of equal merit (4). 

(1) Christ answered the pharisees who had asked 'is it lawful 
to give tribute unto Cesar or not? ' perceiving ' their wickedness,' 
to involve him in political discussions on so delicate a subject in 
the then state of Palestine : ' Shew me the tribute money,' and 
when the pharisees said, being asked by him, that the image and 
superscription was Cesar's, he replied ; ' render therefore unto 
Cesar the things which are Cesar's, and unto God the things that 
are God's,' (Matthew xxii, 18 — 21). It seems to me evident that 
Christ cannot have meant to give in this case a rule in politics; 
for the image on the coin cannot be brought into any connection 
with the question, whether it be lawful to pay taxes, except in this 
way, that the image proves that the person represented has the 
supreme power, and that, therefore, it will be wise to pay taxes, 
unless there is sufficient hope for successful resistance. Other- 
wise Christ would at once have established by his answer, that all 
conquest is right, all resistance of a noble people to a conqueror 
wrong ; for surely there was no other connection between the Ro- 
man Cesar and Palestine than that of mere conquest. The Ro- 
man government disagreed with the theocratic fundamental law 
of Moses. The Jews, under Titus, showed that they had not cal- 
culated their resources by which they brought infinite misery upon 
themselves, yet no one will be bold enough to say that, waiving the 
question of expediency, of sufficiency of means, the Jews had no 
right to attempt throwing off the Roman yoke. 

(2) Book 1 of Vol. ii. of Ranke's Princes and People of South- 
ern Europe in the 16th and 17th Centuries, chiefly from unprinted 



sec. cxxxviii.] Conquest of Rome. 437 

Reports of Legations, Berlin, 1S34. This second and a third 
volume have also the separate title : The Roman Popes, their 
Church and State in the 16th and 17th Centuries. The French 
translation has the title La Papaute. — Neander History of the 
Christian Church, German, now translating. 

(3) E. Q. Visconti, Museo Pio-Clementino VII, p. 100, edit, of 
1807. I take this quotation from Mr. Ranke's work mentioned 
above in note 2. 

(4) Smaragdi Abbatis Epist. ad Ludov. Pium apud d'Achery 
Spicileg. T. v. p. 51. 

CXXXVIII. 2. Conquest of the Roman empire. 
When Christianity had begun somewhat to reform the 
old or Latin world, if not to any great extent the deep 
degeneracy of morals, yet the views of man, it soon ex- 
tended to those tribes who were destined to uproot 
decaying Rome. They came fresh from the north, 
with the ardor of youthful tribes, a fulness of glowing 
souls, with no settled civilisation among them, hence 
free and ready to embrace Christianity with the energy 
of young nations, and a religious fervor peculiar to the 
northern tribes. They were of Teutonic origin, and 
had that national singleness of heart by which most 
Teutonic tribes have ever distinguished themselves 
from the Latin population of Europe, however rude we 
know them to have been at their first appearance, when 
yet in a state of great barbarity. 

The northern nations are less excitable than the 
southern race, hence they cannot so easily be moved 
in masses. With the Greeks, so excitable by nature, 
everything became an impetus to the mass ; the north- 
ern man, calmer, more phlegmatic, duller, weighs things 
more individually, learns to consider the state in relation 
to himself, and is led easier to reflect on individual in- 



438 The State. [book ii. 

terests — on rights. The conquest and consequent dis- 
tribution of the Roman provinces among the conquerors, 
produced feudalism, out of which lawlessness, but also 
the insisting upon individual independence, and later, 
individual right, the feeling of individual honor and im- 
portance, grew up, a direction of the mind which was 
by no means changed when the cities and other com- 
munities entered into that chequered and curious system. 

CXXXIX. 3. Enlargement of states ; denseness of 
population. It has been stated already, that the politics 
of the ancients were essentially city politics. As the 
word is derived from nohc;, so actually did city and state 
mean with them the same. (Respecting the meaning of 
nohq, and the difference between it and Uvoq, state 
and nation, see Aristot. Polit. p. 235, ed. Casaub. See 
likewise this work, book ii. sect, xxix.) The same is 
true in regard to civitas. They did not know other states 
of freemen. Persia was nothing but a number of coun- 
tries conquered and held together by the victorious tribe 
of the Persians. They formed a ruling nobility. Where, 
however, the people can conveniently meet, where the 
ruling community can assemble at any moment, it is 
much more natural that the majority should enjoy unlimit- 
ed power, than in states where the people cannot be seen 
at once, where questions must be treated more abstract- 
edly, and where representing agents, speaking for large 
numbers, must be heard. Besides, no debating proper 
is possible, where the people themselves meet ; the ques- 
tions must be prepared before hand by some authority, 
so that the vote can be ay or no. It was so in a con- 
siderable degree in Greece ; it is so in the democra- 
tic cantons in Switzerland, for instance, Uri, Glarus, 



sec. cxxxix.] Enlargement of States. 439 

Schwyz (1). Yet debating, however abused by many, 
is one of the chief means to obtain an acknowledgment 
of individual rights, and to prevent measures injurious 
to them. Such measures have ever been passed in 
haste by the suspension of rules, if they have been pass- 
ed in deliberative assemblies. 

So long as all citizens knew each other personally, 
the abstract development of the just, separate from the 
good, was as difficult as in the family. 

Increased population has likewise much contributed, 
both by the necessity of imagining the people in the 
abstract, and by bringing individuals, personally un- 
known to one another, into contact. Increased popula- 
tion alone had a most decided effect upon the admin- 
istration of justice ; for it necessarily developed the 
institution of the advocate, without which justice has 
Nourished nowhere. See Feuerbach's interesting re- 
marks on this subject in his Considerations on Public 
and Oral Administration of Justice, Giessen, 1821. 
The advocate has to defend the rights of the citizen in 
the abstract, and to defend them to the utmost — a re- 
mark which in part applies to representatives. Repre- 
sentatives are much more apt to insist upon the rights 
of their constituents, than they themselves in many 
cases would be. Who will tell a citizen in the market, 
voting on a law for himself, not to give up a right if he 
chooses? I am well aware that the members of many 
estates in the middle ages were less jealous of their 
rights — except as far as pecuniary interests were in- 
volved — than the Greeks in the market, but were they 
representatives ? Had they to give an account ? The 
more the member of the estate assumed the character 



440 The State. [book ii. 

of a representative, the more he was obliged to defend 
the rights of his constituents. 

(]) The description of a Landtag, or annual general meeting of 
the people, in one of these cantons, is very curious and instructive 
for the politician. The great deficiencies of direct democracy, un- 
mediated by representation, are manifest. Personality must pre- 
vail ; it cannot be helped according to human nature. The state, 
the citizen's rights, &c, are never taken, in the abstract, on their 
own absolute ground. 

CXL. 4. Printing. The art of printing, in becom- 
ing the great moving agent of European mankind, an 
agent which increased action in intensity and extent, 
naturally propelled men also in this sphere, the pre- 
senting and acknowledging of individual rights. Print- 
ing is light ; on whatever subject it falls, it shows it 
clearer. 

5. Increased value of money, industry ; increased 
consideration of the industrial class. Ancient govern- 
ments had originally no pecuniary wants. The army 
consisted of citizens, unpaid for the service ; the vessels 
were fitted out by way of special taxation, as before 
mentioned, under the name of leitovgyla. (See Heer- 
en's work, quoted several times). Rome was a con- 
quering state, and obtained her treasures from subjected 
provinces. In the times of feudalism, governments 
wanted likewise comparatively but little money. Few 
concerted national actions of a peaceful character took 
place, the feudal monarch supported himself by the in- 
come of his lands, and for war every vassal armed him- 
self and his men. 

In more modern times, however, when governments 
had become cabinet governments, the expenses of cabi- 



sec. cxl.] Industrial Class. 441 

net armies, cabinet wars, and a thousand other under- 
takings, caused great expenses, far exceeding the reve- 
nues derived from crown domains. Whence can the 
money come ? Conquest cannot last for ever. Labor is 
the only permanent source of money ; it must come, 
therefore, out of the pockets of the people, who conse- 
quently attracted more attention. Nobility and clergy 
paying no taxes, or very limited ones, were of no use as 
to furnishing money. The industrial classes rose in im- 
portance, their situation and rights began to be discus- 
sed ; bondage was more and more contracted and re- 
moved, free industry became to be considered as the 
true source of public wealth, and the industrial class, 
formerly consisting of slaves or serfs, was acknowledged 
as^honorable. 

In the early times of Thebes, no one was -admitted 
to a share in government, who had carried on any 
trade for the last ten years (Arist. Pol. iii, 5) ; in our 
times polytechnic schools are established in many coun- 
tries (1) which give a thorough and enlarged education, 
and corresponding standing in society to the industrial 
class. 

By the continued pecuniary wants of governments, 
those who have to pay the money, have obtained, as has 
been shown, a most peculiar, salutary, and continued con- 
trol over government in those states in which the primi- 
tive and ancient principle, that he who has to pay money 
must be asked for it, and therefore may refuse it — com- 
mon throughout in the middle ages — has been retained 
or reestablished. Even in states, where this has not 
taken place, the governments are obliged to treat the 
people with far different regard, from what they would 
do, did they not stand in need of money. The want 

vol. i. 56 



442 The State. [book ii. 

of money and the alienation of crown domains have 
given the commons an effectual check upon govern- 
ment, for which we cannot imagine any other possible 
political contrivance of equal effect, safety and easy 
operation. 

The history of the industrial class from the times 
when slaves only carried on the different trades, to the 
period when, though practised by free men, they never- 
theless were degrading in a degree, and again to our 
own times when their alliance with the sciences be- 
comes daily closer and closer — a part of history in which 
that of the rise and importance of cities largely enters — 
is of the highest interest in the history of civilisation in 
general. 

The large body of the people have entirely changed 
their position, and their rights are acknowledged accord- 
ingly. As late as at the French diet of 1614, the speak- 
er of the third estate was obliged to address the king 
on his knees, while those of the clergy and nobility 
addressed him standing. When president de Mesnes, 
deputy of the third estate, ventured to say that ' France 
is the common mother of all and has nursed all at the 
same breasts,' and that the third estate are the younger 
brothers, and that if treated as such of the same family, 
they would honor and love the others, he gave great 
offence to the nobility, and their president complained 
on the spot, that * the third estate intended to establish 
fraternity with them, as if they were of the same blood 
and equal virtue.' Now the king of the French is called 
the king of the large class of citizens (commons) by 
way of excellence, and Mr. Dupin, the procurator-gen- 
eral of the court of cassation, and president of the 
chamber of deputies (speaker of the commons), in his 



sec. cxll] Discovery of America. 443 

late famous argument on duelling in that court, said : 
* As to the villanous serfs from whom we, of the pre- 
sent day, have the honor of descending,' &,c. French 
papers of June, 1838. 

Science is daily adding to the importance of all indus- 
trial activity and giving rap^d increase to the vivid inter- 
communication of near and distant communities ; and 
with it elevating the great body of the people. Events 
as the arrival of the first steam -packet, of a regular line, 
in the month of April, 1838, at New York from England, 
reducing time and space, are exponents of most powerful 
changes. More, infinitely more can be done in the 
same time, with the same capital, while the rapid ex- 
change of knowledge increases greatly the intensity of 
action. 

(1) I have enlarged upon this subject in a work, Constitution 
and Plan of Education for Girard College for Orphans, printed by 
Order of the Board of Trustees; Philadelphia, 1834. 

CXLL 5. Discovery of America. Of the many con- 
sequences of the discovery of America, deeply affecting 
the whole of modern European history, I will mention 
here only, the expansion of commerce and its increased 
importance — another branch of industry ; the growth of 
moneyed capitals and their increased importance ; while 
until then wealth had consisted almost solely in real es- 
tate, and the land was owned by the nobility or the 
church. Nobility depended upon birth, but money 
could be acquired by every one. Money must be ac- 
knowledged in history as a very powerful popular agent. 



END OF PART FIRST. 



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